UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


• 


. 

A  TKfiKTISE 


ON  THE 


LAW  OF  PENNSYLVANIA, 


RELATING  TO  THE 


ESTATES  OF  DECEDENTS 

THE  CONSTITUTION,  POWERS,  AND  PRACTICE, 


OF  THE 


BY  THOMAS  F.  GORDON. 


Congeriem  secoit,  sectamque  in  membra  redegit. 

Nothing  so  much  requires  legislative  attention  as  the  proceedings  in  the  Orphans' 
Courts — for  as  sure  as  we  descend  into  our  graves,  so  sure  into  this  court  we  must 
come — and  the  man  would  be  a  real  public  benefactor,  who  would  devise  set  forms, 
and  furnish  directions  in  conducting  the  vast  business  in  these  courts,  where  we 
every  day  find  so  deplorable  a  system  of  confusion 

Opinion  of  DUN-CAN,  Justice,  in  the  case  of 
MTherwn  vs.  Cunliffet  al. 


PHILADELPHIA: 

PRINTED   FOR   THE   AUTHOR,  BY   J.    MAXWELL. 
1825. 


EASTERN  DISTRICT  OF  PENNSYLVANIA,  to  wit- 

BE  IT  rtEMBEBED,  that  on  the  fifteenth  day  of  February,  in  the 
fortv  ninth  year  of  the  independence  of  the  United  States  of  Ame- 
rica, A.  D.  1825,  THOMAS  F.  GORDON,  of  the  said  district,  hath  deposi- 
ted in  this  office  the  title  of  a  book,  the  right  whereof  he  claims  as 
Author  in  the  words  following,  to  wit: 

•9  Treatise  on  the  Law  of  Pennsylvania,  relating  to  the  Estates  of  Decedents,  the 
Constitution,  Powers,  and  Practice,  of  the  Orphan's  Court.  By  Thomas  F.  Gordon. 
Congeriem  secuit,  sectamque  in  menibra  redegit.  Nothing  so  much  requires  legisla- 
tive attention  as  the  proceedings  in  the  Orphan's  Courts — for  as  sure  as  we  descend 
into  our  Graves,  so  sure  into  this  Court  we  must  come — and  the,man  would  be  a  real 
public  Benefactor,  who  would  devise  set  forms,  and  furnish  directions  in  conducting 
the  vast  Business  in  these  Courts,  where  we  every  day  find  so  deplorable  a  System  of 
Confusion.  Opinion  o/Dunc  AN,  Justice,  in  the  case  of  M'Pherson  vs.  Cunliff  et  al. 

In  conformity  to  the  act  of  the  congress  of  the  United  States,  intitu- 
led "  An  act  for  the  encouragement  of  learning,  by  securing  the  co- 
pies of  maps,  charts,  and  books,  to  the  authors  and  proprietors  of  such 
copies,  during  the  times  therein  mentioned." — And  also  to  the  act,  en- 
titled, "  An  act  supplementary  to  an  act,  entitled,  "  An  act  for  the 
encouragement  of  learning,  by  securing  the  copies  of  maps,  charts,  and 
books,  to  the  authors  and  proprietors  of  such  copies  during  the  times 
therein  mentioned,"  and  extending  the  benefits  thereof  to  the  arts  of 
designing1,  engraving,  and  etching  historical  and  other  prints." 

D.  CALDWELL, 

Clerk  of  the  Eastern  District  of  Pennsylvania. 


PREFACE. 


IT  is  the  object  of  the  following  treatise  to  present 
to  the  profession  and  to  the  public  a  systematic  view 
of  the  law  of  Pennsylvania  relating  to  the  estates  of 
persons  deceased,  whether  dying  testate  or  intestate: 
To  investigate  the  rights  and  duties  of  their  repre- 
sentatives, whether  selected  by  themselves  or  ap- 
pointed by  law:  To  examine  the  rights  of  heirs,  le- 
gatees, and  distributees:  To  designate  the  means  by 
which  such  rights  may  be  enforced;  and  generally  to 
inquire  into  such  matters  as  appertain  to  the  jurisdic- 
tion of  the  Orphan's  Court. 

That  Court  is  confessedly  among  the  most  impor- 
tant of  our  tribunals.  The  estates  of  a  vast  majority 
of  our  citizens  must  be  subjected  to  its  supervision  as 
certainly,  as  their  owners  descend  to  their  graves;  and 
every  man  in  the  community,  as  heir,  legatee,  distri- 
butee, executor  or  administrator,  principal  or  agent,  is 
interested  to  obtain  a  knowledge  of  the  law  and  prac- 
tice by  which  it  is  governed.  Yet  such  has  hitherto 
been  the  prevailing  ignorance  on  these  subjects,  that 
the  Supreme  Court  has  had  occasion  to  lament  it,  as 
often  as  they  have  been  required  to  revise  the  deci- 
sions of  the  Orphan's  Court.  Nay,  the  enormity  of  this 
ignorance  has  created  its  own  protection  by  establish- 
ing the  maxim  that,"  The  proceedings  of  the  Orphan's 
Court  are  to  be  viewed  with  great  indulgence."  A 
judge  of  the  Supreme  Court,  in  a  very  late  case,  repor- 


iy  PREFACE. 

ted  at  the  end  of  the  volume,  has  said,  "  nothing  has 
been  more  irregular  than,  the  practice  of  the  (Or- 
phan's)  Courts  generally,  there  may  be  some  excep- 
tion, but  very  rare.  In  some  counties  I  would  not 
take  fifty  per  cent,  to  insure  the  purchaser." 

Two  reasons  may  be  assigned  for  the  existing  state 
of  knowledge  in  relation  to  the  business  of  the  Or- 
phan's Court;  First,  there  is  no  connected  view  of  the 
law  on  the  subject,  the  statutes  and  adjudged  cases 
relating  to  it,  being  widely  scattered  over  many  vo- 
lumes; and,  secondly,  the  short  sessions  of  the  court, 
and  the  manner  in  which  its  business  is  done,  being 
chiefly  in  paper,  prevent  the  student  from  learning  its 
practice,  from  his  own  observation.  By  collecting  and 
digesting  tjie  law,  the  author  flatters  himself,  that  he 
has  prepared  a  direct  path  to  the  attainment  of  a  com- 
petent share  of  information,  for  conducting  the  ordina- 
ry business  before  this  tribunal;  That  by  drawing 
from  Toller  and  other  English  authorities  the  princi- 
pal rules  of  the  law,  common  to  our  own  state  and  to 
Great  Britain,  for  the  government  of  executors  and 
administrators,  whilst  he  has  rejected  every  thing  pe- 
culiar to  the  latter  country,  he  has,  in  some  measure, 
supplied  the  place  of  such  authorities.  His  ambition 
is,  that  his  work  may  become  the  nucleus  on  which  a 
complete  and  uniform  system  shall  hereafter  be  for- 
med for  the  Orphan's  Courts  throughout  the  common- 
wealth. 

The  late  decision  of  the  Supreme  Court  in  the 
case  of  M'Pherson  vs.  Cunliff  et  al.  determined  at 
Pittsburg  on  the  thirteenth  of  September  last,  has  re- 
stored the  Orphan's  Court  to  its  proper  place  among 


PREFACE.  v 

our  tribunals.  At  least,  its  decrees  for  the  sale  of  real 
estates  will  no  longer  be  subject  to  reversal  in  eject- 
ment. The  principle  of  this  case  will  meet  with  the 
general  approbation  of  the  bar,  even  though,  it  should 
be  thought,  that  in  a  part  of  the  case  the  principle 
has  been  carried  too  far.  Hitherto  it  was  incumbent  on 
the  suitors  of  that  Court  to  guard  against  irregularity 
in  the  proceedings  antecedent  to  the  decree,  lest  such 
irregularity  should  become  the  foundation  of  a  suit  in 
another  court-, — less  attention  by  parties  interested  in 
the  distribution  of  real  estate,  will  not  now  be  necessa- 
ry, to  protect  them  from  the  conclusive  effects  of  an 
order  of  sale. 

The  case  of  M'Pherson  vs.  Cunlijf  et  al.  esta- 
blishes the  principle  that  the  decrees  of  the  Orphan's 
Court  upon  all  subjects  within  its  jurisdiction,  are  con- 
clusive, unless  reversed  upon  appeal.  Hence,  it  may 
be  presumed,  that,  the  accounts  of  executors,  admin- 
istrators, guardians' and  trustees,  confirmed  by  the  Or- 
phan's Court,  and  embracing  only  matters  which  are 
within  its  jurisdiction,  will  not  be  opened,  in  suits  in 
the  common  law  courts-,  and  that,  the  Orphan's  Courts 
will  be  permitted  uninterruptedly  to  pursue  what  they 
are  empowered  to  effect, —  the  entire  distribution  of 
the  real  and  personal  estate  of  the  decedent;  compel- 
ling the  executor,  administrator,  guardian  or  trustee, 
by  attachment  or  sequestration  to  perform  his  trust. 

The  author  submits  his  work  to  the  public,  with  a 
full  conviction  that  his  professional  brethren,  who  are 
the  best  able  to  detect  his  errors,  will  make  every 
proper  allowance  for  the  novelty  and  difficulties  of 
his  subject. 


A  TABLE  OF  THE  CONTENTS. 


BOOK  I. 

Of  the  Constitution  and  Powers  of  the  Orphan'? 

Court. 

CHAPTER  I. 

Organization  and  general  powers  of  the  Court'— form  of 
action  and  process — judgment  and  appeal. 


SECTION  I.  Organization  and  general  powers  of  the  Court.  1 

II.  Form  of  suit  and  process.       -  16 

III.  Judgment  and  appeal.  26 

BOOK  II. 

Of  Wills  and  Probates. 

CHAPTER  I. 

What  is  a  will — how  many  kinds — what  is  a  codicil— who 
may  make  a  will— of  what  a  will  may  be  made — construc- 
tion— proper  words  to  create  the  several  species  of  estates 
by  will — revocation  of  wills. 

SECTION  I.  What  is  a  will — how  many  kinds—what  is  a 

codicil.      -.-..--39 


viii  A  TABLE  OF  THE  CONTENTS. 

SECTION  II.  Who  may  make  a  will.  -        -  45 

III.  Of  what  a  will  may  be  made.  -  49 

IV.  Of  the  construction  of  wills.  -  50 
V.  Of  the  proper  words  to  create  the  several  species 

of  estates  by  will.  53 

VI.  Of  revocations.  59 

CHAPTER  II. 
Of  Probate. 

Of  the  Register — Register's  Court — issue  to  Common  Pleas — 
of  appeal  from  Register's  Court — effect  of  probate. 

SECTION  I.  Of  the  Register.  65 

II.  Of  the  Register's  Coort.      -  69 

III.  Of  the  issue  to  the  Common  Pleas.  71 

IV.  Of  appeal  from  Register's  Court.  74 

V.  Of  the  effect  of  probate.  -         -         77 

BOOK  III. 

Of  the  rights  and  duties  of  Executors  and  Admi- 
nistrators. 

CHAPTER  I. 

What  is  an  executor — who  may  be — how  appointed — of  ac- 
ceptance or  refusal  by  executor — revocation  of  letters  tes- 
tamentary, executor  de  son  tort. — Power  of  executor 
before  probate. 

SECTION  I.  What  is  an  executor — who  may  be— how  ap- 
pointed.                     -----  79 
II.  Of  acceptance  and  refusal  by  executor.  82 

III.  Revocation  of  letters  testamentary.  -  83 

IV.  Of  executor  de  son  tort.       -  87 
V.  Of  the  power  of  the  executor  before  probate.    -  93 


A  TABLE  OF  THE  CONTENTS.        ix 

CHAPTER  II. 

Administration  what — how  many  kinds — who  may  be  an 
administrator — how  granted. 

SECTION  L  Administration  what.  -         94 

II.  Of  the  several  kinds.            -  95 

III.  Who  may  be  administrator.  -       100 

IV.  Administrator  how  appointed.  -                             107 

CHAPTER  III. 

Of  the  interest  of  the  executor,  or  administrator,  in  the  estate 
of  the  decedent. 

SEonon  I.  In  chattels  real  115 

II.  In  chattels  personal  118 

III.  In  choses  in  action         -                  -  123 

IV.  Of  the  chattels  which  survive  to  the  wife  -             138 
V.  Of  Parapharnalia  148 

VI.  Of  Donatio  causft,  mortis     -  -  150 

VII.  How  the  effects  which  the  executor  takes,  become 

his  own  -  "-".'•         1^3 

VIII.  Of  the  interest  of  an  administrator,  general  and 
special — of  a  married  woman  executrix,  or  ad- 
ministratrix— of  several  executors  or  adminis- 
trators— of  the  executor  of  an  executor.  154 

CHAPTER  IV. 

Of  the  duties  of  an  executor  or  administrator — of  the  funeral 
— of  the  inventory — of  collecting  the  effects — of  the  pay- 
ment of  debts — of  the  payment  of  legacies — of  the  distribu- 
tion of  the  personal  estate. — Advancement. 

SECTION  I.  Of  the  funeral       -  155 

II.  Of  the  inventory        -  -                      156 

III.  Of  collecting  the  effects  159 

IV.  Of  the  payment  of  debts  -                     161 

2 


*  A  TABLE  OF  THE  CONTENTS. 

SECTION  V.  Of  the  payment  of  legacies  181 

VI.  Of  the  distribution  of  the  personal  estate     -  211 

VII.  Advancement       -  214 

CHAPTER  V. 

Of  the  power  of  the  executor  and  administrator  over  the  real 
estate  of  the  decedent. 

SECTION  I.  In  what  cases  they  may  sell  the  real  estate  of  the 

decedent  219 

II.  Of  estates  devised  to  be  sold      -         -  220 

III.  Of  estates  refused  by  the  heirs,  or  parties,  in  dis- 

tribution -       .-  225 

IV.  Of  sales  for  the  payment  of  debts,  and  support  of 

minor  children  -        -         224 

V.  Of  sales  for  payment  of  debts  after  final  settle- 
ment of  accounts  of  executor,  or  administrator  242 
VI.  Of  conveyance  of  lands  pursuant  to  contract  of 

decedent  246 

VII.  Lien  of  the  purchase  money      -  249 

VIII.  Of  the  effect  of  sales  by  order  of  the  Orphan's 

Court  -  263 

CHAPTER  VI. 

Of  Devastavit  -  250 

BOOK  IV. 

Of  remedies  for  and  against  executors  and  adminis- 
trators. 

CHAPTER  I. 

Of  causes  for  which  an  executor  or  administrator*  may  main- 
tain suit — of  suits  by  executors  or  administrators, 

SECTION  I.  Of  the  causes  for  which  an  executor,  or  adminis- 
trator may  maintain  suit  268 
II.  Of  suits  by  executor  or  administrator  269 


A  TABLE  OF  THE  CONTENTS.  xi 

CHAPTEil  II. 

Of  remedies  against  executors  and  administrators — for  cre- 
ditors— legatees — distributees. 

SECTION  I.  Of  remedies  for  creditors  in  the  common  law 

courts  ._----         279 

II.  Of  remedies  for  creditors  in  the  Orphan's  Court    315 

III.  Of  remedies  for  distributees       ...  326 

IV.  Of  remedies  for  legatees       -  -  327 

BOOK  V. 

Of  descents  and  distribution  of  real  and  personal  es- 
tates. 

CHAPTER  I. 

Of  persons  entitled  to  distribution — of  their  respective  pro- 
portions -        -  335 

CHAPTER  II. 

Of  the  manner  of  making  distribution. 

SECTION  I.  Of  the  powers  of  the  Orphan's  Court  in  making 

distribution      ...  _  344 

II.  Of  the  inquest  for  partition  -         354 

HI.  Of  the  order  or  writ  360 

IV.  Of  the  return  and  confirmation      -        -  366 

V.  Of  the  sale  of  the  real  estate  where  the  parties  re- 
fuse to  take  the  estate  at  the  valuation       -  t      390 

CHAPTER  III. 

Of  the  widoiv's  dower — how  barred — of  her  rights  under  the 
intestate  laws. 

SECTION  I.  Of  the  widow's  dower  392 

II.  How  barred      -  -  400 

III.  Of  the  rights  of  the  widow  under  the  intestate 

laws 416 


xii  A  TABLE  OF  THE  CONTENTS. 

BOOK  VI. 

Of  guardian  and  ward. 

CHAPTER  I. 

SECTION  1.  Of  the  several  species  of  guardians  424 

CHAPTER  II. 

Who  may  be  guardian — how  appointed — powers,  duties,  and 
liabilities  of  guardian. — Remedies  of  the  ward  against  the 
guardian. — Of  the  termiation  of  the  wardship. 

SECTION  I.  Who  may  be  guardian  -  436 

II  How  appointed  -  437 

III.  Of  the  powers,  duties,  and  liabilities  of  guardians  439 

IV.  Of  the  remedies  of  the  ward  against  the  guardian  447 
V.  Of  the  termination  of  the  wardship  451 

ADDENDA. 

\ 

No.  I.  Note  on  the  remedy  which  a  creditor  legatee,  or 
distributee  of  a  decedent's  personal  estate  may 
have  against  debtor  of  such  estate  -  454 

II.  Note  on  the  execution  of  wills.         ...        456 

III.  Note  on  the  powers  of  executors,  administrators, 

and  guardians,  to  vest  monies. 

IV.  Rule  of  Orphan's  Court  of  first  district,  relative  to 

the  sale  of  decedent's  estate  after  final  settle- 
ment of  accounts  by  executors  and  adminis- 
trators. 

V.  Note  on  the  power  of  executors,  administrators,  trus- 

tees, and  guardians,  to  extinguish  redeemable 
ground -rents. 

VI.  Note  on  liability  of  executors,  and  administrators, 

for  costs. 


A  TABLE  OF  THE  CONTENTS.  xiii 


APPENDIX.— No.  I. 

No.  1.  Petition  for  citation. 

2.  Citation. 

3.  Proof  of  service. 

4.  Attachment. 

5.  Return. 

6.  Attachment  with  proclamation. 

7.  Return. 

8.  Writ  of  sequestration. 

9.  Appeal  from  decree  of  register. 

10.  Issue  from  the  Register's  Court. 

11.  Affidavit  on  appeal. 

12.  (a)  Recognizance  on  appeal. 

12.  (b)  Proceedings  on  appeal,  on  disputed  will. 

12.  (c)  Proceedings  on  appeal,  on  disputed  administration 

de  bonis  non,  cum  testamento  annexo. 
12.  (d)  Proceedings  on  appeal  from  a  decree  revoking 

letters  of  administration. 
IS.  Executor's  oath. 

14.  Letters  testamentary. 

15.  Administrator's  oath. 

16.  (a)  Letters  of  administration, 

16.  (b)  Letters  of  administration,  with  the  will  annexed. 

16.  (c)  Letters  of  administration  pendente  lite; 
(d)  Letters  of  administration  de  bonis  non, 

17.  Petition  for  order  of  sale. 

18.  Order  of  sale. 

19.  Advertisement. 

20.  (a)  Return  to  order  of  sale. 

20.  (b)  Order  of  the  court  on  return  of  administration  of 
the  sale  of  real  estate. 

20.  (c)  Return  when  not  sold. 

21.  Petition  for  an  order  of  sale  on  the  final  settlement  of 

the  accounts  of  an  administrator  or.  an  executor. 

22.  Bond  of  administrator  on  the  sale  of  an  intestate's  real 

estate. 


A  TABLE  OF  THE  CONTENTS. 

23.  Petition  for  partition. 

24.  Order  of  partition. 

25.  Petition  for  inquest. 

26.  Writ  of  partition. 

27.  Return  to  order  of  partition,  where  the  property  cannot 

be  divided  among  all  the  heirs. 

28.  Return  to  order  of  partition  where  the  estate  is  equally 

divided  among  all  the  heirs. 

29.  Return  to  an  order  of  partition  where  the  estate  cannot 

be  divided. 

30.  Sheriff's  return  to  writ  of  partition  where  the  estate 

cannot  be  divided. 

31.  Return  of  sheriff  to  the  writ  of  partition  where  the 

estate  can  be  divided. 

32.  Bond  to  secure  the  payment  of  the  purpart  and  divi- 

dend of  the  estate  of  an  intestate  to  the  heirs,  &c. 

33.  Petition  for  rule  on  the  heirs. 

34.  Rule  upon  the  heirs. 

35.  Acceptance  of  estate  at  valuation. 

36.  Refusal  of  the  estate  at  the  valuation. 

37.  Power  of  attorney  from  heirs  of  intestate. 

38.  (a)  Declaration  of  attorney  in  fact. 

38.  (b)  Confirmation. 

39.  Petition  for  the  sale  of  real  estate  of  an  intestate,  when 

refused  at  the  valuation. 

40.  Order  of  the  court  on  the  above  petition. 

41.  Appeal  from  a  decree  of  the  Orphan's  Court. 

42.  Petition  for  citation  to  widow  to  elect  or  refuse  a  devise 

or  bequest. 

43.  Citation  to  widow. 

44.  Order  of  the  court  on  the  non  appearance  of  widow. 

45.  Order  of  court  on  the  appearance  of  widow. 

46.  Petition  for  guardian  for  minor  under  fourteen  years 

of  age. 

47.  Petition  for  guardian  for  minors  above  fourteen  years 

of  age.' 

48.  Petition  for  guardian  by  minors  under  and  above  the 

age  of  fourteen  years. 


A  TABLE  OF  THE  CONTENTS.  xv 

49.  Petition  for  sale  of  minor's  estate. 

50.  Report  of  auditors  on  the  foregoing. 
51   Order  jbr  sale  of  minor's  estate. 
5£.  Return  of  sale  by  guardian. 

53.  Bond  by  guardian. 

54.  Petition  for  citation  to  guardian  to  settle  his  accounts. 

55.  Petition  for  the  appointment  of  auditors  on  guardian's 

accounts. 

56.  Report  of  auditors. 

57.  Affidavit  of  the  truth  of  exceptions  to  report  of  auditors. 


APPENDIX.— No  II. 

Case  of  John  M'Pherson  v.  Robert  Cunliff'and  Al.  (on  the  con- 
clusiveness  of  the  judgment  of  the  Orphan's  Court.) 


ERRATA. 

Page  32.  line  12,  before  "judicial"  inserters*. 
S3,  line  20,  dele  "  fcis." 
"  line  22,  dele  "  ascertain"  and  insert  order. 
57,  title,  for  "  conduction"  read  construction. 
81,  title,  dele  "  ivhat  is  a  will,"  and  read  executor  how  appointed. 
112,  113,  114,  title,    for   "appeal  from  Register's  Court,"  read  appoint- 
ment of  administrators, 
134,  line  4,  dele  "  devisor"  and  read  devisee. 

140,  line  2,  dele  "  serves"  and  read  set-era. 

14,  dele  "  distribution"  and  read  disposition. 

141,  after  word  "  bankrupt"  in  bottom  line,  insert  dependant  upon  her  survi- 

ving another  person. 
248,  2  line,  dele  "  of." 
289,  line  14,  for  "^eri"  read  scire. 
"    note  (a)  for  "  1056"  read  1029. 
401,  line  7,  for  "jointures"  read  jointure. 

439,  line  4,  for  "  its"  read  fcis. 

440,  line  25,  after  "  emp/oi/wient"  insert  of  the. 
50,  note  (c)  for  "  Tiudlay"  read  Findlay. 

55,  note  (g)  for  "  264"  read  455. 


TABLE   OF   AMERICAN    CASES 

CITED  /JV*  THE  FOLLOWING  W011K. 


Page 
A. 

ADAMS  and  Sword  129 

and  Jacobs  -         -     178 

Adleman  v.  Way  124 

Addicks  and  Commonwealth  426 
Allen  v.  Irwin  -  92.  98 
Anderson's  ex'r  v.  Sharp 

and  Al  409 

Vt  Carkuff  239 

Armstrong  t>.  Booth  -  302 
Arndt  v.  Arndt  61 

Axers  v.  Mussleman         -    239 


B. 


410 


Bailey  &  Watson 
Baker's  appeal 

440,  441,  444,  451 
Bannister's,  ex'r  &  White  308 
Barnet,  &  Yohe  27,  29,  145,  377 
Barne's  less.  v.  Irwin  46,  47 

and  Say's,  ex's 

440,  441,  447 

Barnitz.  v.  Eichelberger  -  233 
Beach  u.  Lea  -  -  145 
Beatty  &  Wife  v.  Smith 

165,  171,  376,  388 
Berquier  &  Dessebats  43,  68 
Berry  hill  v.  Wells  -  177 

Bevan  v.  Taylor  339 

Bickel  &  Young 

244,  355,  S61,  361,  364,  418 
Biddle  &  Powell  -  -  182 
Biggs  v.  Brown  -  136,  137 
Blanchard  v.  M'Laughlin  454 
Boileau  &  Vanz,ant  72 

Boudinot  v.  Bradford 

59,60,  61,  64,  212 
3 


Bovard  v.  Wallace 
Boniface  v.  Scott 
Bond's  case 
Booth  v.  Armstrong 
Bower  &  Kaufelt 
Boyd  &  Shaw 
Boylston  &  Dawes 
Buckwalter  &  Hamilton 
Bulkly's  case 
Blocher  v.  Carmony 


Page 
27 

162,  163 
162,  167 
302 


401,  402 

-  126 
403 

84 

-  383 


Bradford  &  Ingersol  71,  72 
Brady  &  Commonwealth 

69,70,76,  113 

Bradford's,  ex'rs,  case  of  97, 149 
Brand  &  Shaller  178,  412 

Braxton  v.  Justices  of  Spot- 

sylvania        -  297 

Bremen  v.  Weishaupt  -  129 
Brennenian  &  Hersha  369,  370 
Brown  &  Hylton  40 

&  Dougherty  &  Al      54 

&  Griswold 

's  Appeal 

&  Clow  &  Al 

v.  Turner 

v.  Furer 


Bruce  v.  Bruce     - 
Bruington  &  Engles  &  Al 
Brower's  ex.  v.  Fromm 
Bryant  v.  Hunter  &  Al    - 
Bryan  &  Al  v.  Commth. 
Bryson  &  Lazarus 
Bujac  r.  Morgan 
Burns  v.  Burns 
Burkart  «.  Bucher 
Burt  Vi.  Krumbaar 
Burnlv  r.  Lambert 


124 
267 
271 
329 
330 
43 
40 
182 
205 
309 

233,  234 
16 

59,  60,  61 
55 

141,142 
189,  308 


XV1H 


TABLE  OF  AMERICAN  CASES,  &c. 


Page 

Busby  v.  Busby  55 
Byrne  v.  Byrne  -  .-  206 
v.Walker  319 

C. 

Caldwell,  ex'rs  v.  Fitzgerald  197 

• less.  v.  Furguson     55 

Callaghau  v.  Hall  127,  214,  264 
Campbell  v.  Hollaway  -  140 

— v.  Richardson        168 

&  M'Donald    -    263 

Cay's,  ex.  &  Roberts  -  177 
Carkuft'v.  Anderson  -  239 
Chew  v.  Griffith  335 

Chaloners,  ex.  &  Dallas  295 
Christy  v.  Smith's,  ex'rs  282 
Clarke  v.  Webb  &  Al  -  308 

v.  Mercey  49 

v.  Herring  333 

Clow  &  Al.  v.  Brown  -  271 
Coates  v.  Hughs  -  ,  63,  76 
Commonwealth  v.  Irwin  13 

v.  Lewis         161 

_  v.  Emery        168 

— — v.  Brady 

69,  70,  71,  113 
v.  King  119, 120 
v.Ryan&Al  309 
v.  Fence  381 
v.  Evans  410 
v.  Addicks  426 
v.  Nutt 
v.  Keppele 


426 
440 
325 
376 
126 
55 
178 


Connolly  &  Sutton 
Cooper  &  Taggert 
Cortelyon  v.  Lansing 
Creamer  &  Green 
Craig  &  Williams 
Cresoe  -v.  Laidley  336,  340 
Crawford  &  Al  v.  Willing  178 
Croft  v.  Smith's,  ex'rs.  282 
Craighead  v.  Febiger  239 

Crosky  &  O'Brien  -  272 
Crunkelton  &  Hastings  &A1  400 
Cuthbert  v.  Cuthbert  184,  202 
Crosdale  &  Scott  -  414 
Croston's  case  -  421 

Cunliff  &  Al  &  M'Pherson. 

Appendix. 


Page 

Dallam  v.  Wampole  &  Al 
Dallas  v.  Chaloner's,  ex'rs    295 
Dasher  v.  Leineweaver         324 
Dawes  v.  Boyleston        -       126 

v.  Swan  -    195 

Davis  &  Havard    40,  63,  64,  65 


Davy  &  Marriot 

&  Ux  u.  Turner 


323 
-       406 
43,48 
202 
-     371 
337 

263,  421 
136 
178 
171 
397 
46 


51 
54 


Dessebats  v.  Berquier 
Dewit  v.  Tates 
Diamond  v.  Robinson 
Dillo  &  M'Comb 
Dillon  v.  Young 
Dickey  &  Shults 
Dil worth  v.  Sunderling 
Dorsey  &  Tunis 
Dodson  v.  Davis 
Douglass  &  Starrit 
Downs  &  Linn 
Doughty  &  Al  v.  Browne 

E. 

Eckhart  &  Grasser  -  212 
Eichelberger  v.  Barnitz  223 
Elder  &  Wallace  27,  55,  72 

Ex'rs  &  M'Collough  387 

Elliot  v.  Elliot 

358,  364,  365,  390,  451 
Emerick  v.  Garwood  -  165 
Emery  &  Commonwealth  168 
Emory  &  Rapelje  &  Al  178 
Engles  &  Al  v.  Bruington  40 
Eyster  v.  Young  -  41,  68 
Eyre  v.  Golding  -  191,  195 
Evans  &  Fox  -  -  73 

— less  v.  Webb     396,  403 

• v.  Comm'th        410 

Ewing  v.  Lewis  272 

F. 

Febiger  v.  Craighead  239 

Federhaft  &  Kohr  -  324 
Ferree  v.  Commonwealth  381 
Ferguson  &  Caldwells,  less,  .55 
Findley  v.  Read  -  50 

Finney  v.  Moore  -  27,  36 
Fisher  &  Hoge's,  lessee,  45,  46 
— &A1&  Lewis  -  182 


TABLE  OF  AMERICAN  CASES,  &c. 


xix 


Page 
Fitzgerald    v.    Caldwells', 

ex'rs  1  77 

Fitzsimmons  v.  Solomons  285 
Folwell  &  Smith  223 

Fogelsonger  v.  Sommerville  385 
Fox  v.  Evans  73 

-  v.  Wilcox 

213,440,441,443 
Frazier  v.  Tunis  174 

Frazer  &  Griffith  -  111 
Franklin  v  Kean  171,  367,  376 
French  v.  M'llhenny  -  54 
Fries  &  Watson  177 

Fromm  &  Brewer's,  ex'r  182 
Fulmer  &  Moody  223 

Fullerton's  case  227 

Furer  v.  Brown  -    330 

G. 

Garwood  &  Emerick  -  1  65 
Gause  v.  Wiley  -  329 

Gelbach's  appeal  447 

Gold  ing  v.  Eyre  191 

Gordon's  adm'rs  v.  Justices 

of  Frederick  296 

Graft  v.  Smiths,  ex's     280,  414 
Graham's  appeal 
Grasser  v.  Eckart 
Gratz  v.  Prevost 
Grayson  &  Kline 
Green  v.  Creamer 

-  -v.  Sarmiento 
Grseme  u.  Harris 
Grier  v.  Huston 
Griffith  v,  Frazer 

-  <«  Ogle     - 

-  v.  C 


ew 


425,  430 
212 
233 

370,  373 
-  55 

-  166 

-  109 

-  -     S15 

111 
289 

-  -  334 
Griswold  t?.  Brown  -  124 
Guier  v.  Kelly  98,  231,  28 

H. 

Haines  v.  Witmer  -  59 
Hall  v.  Vandergrift  -  55,  56 
-  v.  Callaghan  127,  214,  26 
Hamilton  &  Lodge  139,  141 
Hamilton  v.  Buckwalter  403 
Hanna  &  M'Clay  37 

Hautz  v.  Hull       -        -        72 


lantz  v.  Seely 
Harris  &  Grseme 
-  -v.  Hays 


larrison  v.  Kelly 


H. 


Page 

291,  329 

109 

-     338 
406 


281 


lart  &  Miller 
iassencleaver  v.  Tucker 

192,  332 
ffasting  &  Al  v.  Crunkelton  400 
flavard  v.  Davis  40,  63,  64,  65 
Hays  v.  Jackson  -  -  133 
tteister  v,  Knipe  290 

Henry  v.  Risk  178 

&  Wilson  49 

Herr  v.  Slough  -     124 

Hersha  v.  Brenneman  369,  370 
Hight  v.  Wilson  -  40,  41 
Hoare  v.  Mulloy  -  -  285 
Hoge's,  less.  v.  Fisher  45, 46 
Holsback  v.  Vanbuskirk  327 
Hollaway  &  Campbell  -  140 
Howel  v.  Leacock  414 

Hubly  v.  Hamilton  171,  377 
Humes  v.  M'Farlane  -  50 
Huckle  v.  Phillips  227,  263 
Hunter  &  Al  r.  Bryant  205 
Hunts,  ex'r  v.  Wilson  290 

Huston  &  Grier  315 

Hylton  V'  Brown  40 


I. 

Jackson  &  Hays 
Jacobs  v.  Adams 
Iddings  u.  Iddings 
Jenkins  &  Stool  loos 
tngersol  v.  Bradford 
Jones  &  Knox  &  Al 
Jones  v.  Ringold 
Jones  t?.  Moore 
Johnson  v.  Haines,  less 
and  Price  &  Ux 


Irish  i".  Smith 

Irwin  v.  Commonwealth 

&  Shields',  &  Al 

&  Barnes,  less 

&  Allen 

&  Larrimer's,  less. 


-  133 

178 
51 

386 
71,72 
'  178 

-  178 

-  272 
340 
393 

62,  73 

13 

-  42 

-  46 
92,98 

228 


XX 


TABLE  OF  AMERICAN  CASES,  &c. 


Page 
Justices  of  Frederick  & 

Gordons,  adm'rs  -  296 
Justices  of  Spotsylvania  & 

Braxton  -  297 

Izard  &  Shippen  539 


K. 

Kaufelt  r.  Brown  249 

Kean  v.  Franklin  171,  367,  376 
Kelly  &  Guier  -  38,  231,  282 

&  Harrison  406 

Keller  v.  Michael  -  415 
Kennedy  v.  Wachsmuth  256 
• —  &  Nedrow  &  Ux 

401,  403 

Keppele  &  Commonwealth  440 
Kilhnger  v.  Redinhauser 

174,416 

King  v.  Comm'th  1 19,  1 20 

Kintner  &  Messinger  -  38 
Kline  v.  Grayson  370,  373 

Kohr  v.  Federhaft  324 

Kirk  v.  Dean  -  410 

Knipe  v.  Heister  290 

Knox  &  Al  v.  Jones  -  178 

L. 

Laidly  v.  Cresoe  336,  340 

Lambert  &  Burnty  -  189 
Lansing  &  Cortelyon  126 

Lawson  v.  Morreson  59,  61,  64 
Larriiner  &  Al  v.  Irwin  228 
Lazarus  v.  Bryson  233,  234 
Lea  &  Beach  -  145 

's  ex'r  v.  Yard        -        294 

Learning  &  Massey  &  Al  207 
Leacock  &  Howell  -  414 
Legg  v.  Legg  -  -  140 
Lewis  v.  Maris  -  40 

&  Fisher  &  Al      -      182 

&  Ewing  -   272 

Lloyd's,  less  v.  Taylor  223,407 
Lodge  v.  Hamilton  1S9,  141 
Long  v.  Majestre  453 

Ludwig  v.  Stoever  -  111 
Lynn  v.  Do\vns  -  51 


M. 

Majestre  v.  Long 


453 


Marriot  v.  Davy 
Maris  &  Lewis 
Martin  v.  Smith 
Massey  &  Stones,  adm'r 

&  Al  v.  Learning 

v.  Schots  &  Al     • 


Page 

323 
-  40 
272 
124 
407 
295 


362, 


Matther  v.  Trinity  Church   124 
Meason  ex  parte 

153,162,163,179 
Messenger  u.  Kintner 
38,  251, 

Mercy  &  Clarke 
Mercer  &  Watson 
M'Clay  fi  Hanna 
M'Comb  v.  Dunch 

v.  Dillo 

M'Cullough  v.  Young 


64 
49 
412 
37 
292 
337 
110 
&  Elder's,  ex'r.  387 

&  Allen         -    403 

M' Donald  v.  Campbell  263 
M'Farland  v.  Humes  -  50 
M'Laughlin  v.  Blanchard  454 
M'Kim  &  Al  v.  Riddle  -  272 
M'Kean  v.  Shannon  -  295 
M'llheunj  &  French  -  54 
M'Intirev.  Ward  -  411 
M'Pherson  v.  Cunliff  &  Al 

Appendix. — No.  II. 


Millar  &  Al  v.  Millar 
Michael  &  Kellar 

&  Stout 

v.  Hart 


46.72 
414 
280 

-  281 
323 

.     195 

•  227 

16 

27,  36 
272 
223 
223 

Morrow  &  Thompson    396,  411 
Morrison  &  Al  v.  Semple  54,  55 

and  Lawson  59,  61 , 64 

Morris,  less  v.  Vanderin     -    67 

—  ex.  v.  M'Conaughy  282 

less  v.  Smith       -      280 

Mundorf  &  Shenk  124 

Murray  &  Welsh         -         165 
Mulloy  &  Hoare 
Musselman  &  Axers      -      272 


Millar  v.  Millar 
Miles  v.  Wistar 
Moliere's,  less  v.  Noe 
Morgan  &  Bujac 
Moore  &  Finney 

&  Jones 

Moody  v.  Vandyke  &  Al 
's  less  v.  Fulmer 


TABLE  OF  AMERICAN  CASES,  &c. 


xxi 


N. 


Page 


Nedrow  &  Kennedy  &  Ux. 

401,  403 

Newlin  v.  Newlin  146 

Newel's  case  -       218 

Nichols  &  Prevost  164 

v.  Postlethwaite  -    332 

Nicholas  &  Obermeyer  178 
Noe  &  Moliere's,  less  -  227 
North  v.  Rham  231,  233 

Nutt  &  Commonwealth        426 

O. 

Obermeyer  v.  Nicholas  178 

OBrian  v.  Crosky  2/2 

Ogle  &  Griffith        -  -    289 

Oyster  &  Al  v.  Oyster  -    217 

P. 

Patterson  ».  Sample  -  170 
Pemberton  v.  Parke  182,  188 

Pendleton  v.  Ruffin         -  303 

&  Swearingen 

167,  267,  284 

Penrose  v.  Penrose  -  285 
Petit  &  Sharp  68,416 

Phillips  &  Huckle  227 

Plumstead's  Appeal        -  42 

Pleasants  &  Young        -  248 

Price  &  Scott  59 

v.  Watkins        -  188 

&  Ux  v.  Johnson     -  393 

Prevost  v.  Nichols        -  164 

v.  Gratz,  223 

Pringle  v.  Black's,  ex'rs  292 

Powell  v.  Biddle  182 

Postlethwaite  &  Nichols  332 

Pollard's  case                 -  438 

R. 

Rambler  &  Spangler  -  77 
Ramsey  &  Scott  -  164,165 
Rapelje  &  Al  v.  Emory  -  178 
Richard's  case 

37,  320,  321,  326,451 
Read  &  Walmsley's,  less  41,  75 
Redinhauser  &  Killinger 

174,  416 


Page 

Rex  v.  Rex  -  -  358,  360 
Richardson  &Campbell  169, 170 
Riddle  &  Findlay  50 

&  M'Kim  &  Al    -     272 

Ringold  &  Jones  178 
Risk  -v.  Henry  -  178 
Rham  v.  North  23 
Rossiter  v.  Simmons  -  40 
Robinson  v.  Martin  186,  343 
&  Diamond 


321 

Roberts  v.  Cay's,  ex'ors  177 
Ruffin  v.  Pendleton  -  303 
Russell  v.  Skipworth  -  49 
Ruston  v.  Ruston  -  50,  51 


S. 


170 

217 
166 


Sample  &  Patterson 
Sampson  v.  Sampson 
Sarmiento  v.  Green 
Say's,  ex'rs  v.  Barne's 

440,  441,  447,  451 
Semple  &  Morrison 
Scott  v.  Price 
— —  v.  Ramsey 

&  Boniface 

v.  Crosdale 


Selin  v.  Snyder 
Seely  &  Hantz 
Sharp  v.  Petit 


54,55 
59 

164,  165,  167 
162,  163 
414 
-     262 
292 
68,  416 
&  Al  v.  Anderson's,  ex. 

409 

Shaller  v.  Brand  1 78,  412 

Shaw  v.  Boyd  -  401, 402 
Shannon  v.  M'Kean  -  295 
Shippin  v.  Izard  339 

Schot  &  Al  &  Massey  295 
Shields  &  Al  v.  Irwin  42 

Shauffer  v.  Steever  111 

Shenk  -i«.  Mundorf  124 

Shoemaker  v.  Walker  397 

Simmons  &  Rossiter  -  40 
Simpson  v.  Ammon  160,  26,9 

&  Talbot's,  less 

412,413 

Sinderling  &  Dil worth  178 
Skipworth  &  Russel  -  49 
Slough  &  Herr  -  124 

Smith  &  Irish  -        6<4,  73 


xxn 


TABLE  OF  AMERICAN  CASES,  &c. 


Page 
Smith  &  Martin  272 

's,  ex'rs  &  Graff  280,  414 

&  Morris',  less      -      280 

&  Croft  282 

&  Walker  339 

&  Beatty  &  Wife 

165,  171,  376,  388 

&  Zebach  223 

•  &  Folwell 


Snyder  v.  Snyder 
Solomons  &  Fitzsimmons 
Sommerville  &  Fogelsonger 
Stool foos  &  Al  v.  Jenkins 
Spangler  v.  Rambler 
Starret  r.  Douglass 
Stammers  &  Weston 
Stcever  v.  Whitman 


Ludwig 


323 
253 
286 
385 
286 
-  77 

46 
67,  364 

50 
111 
280 


Stout  v.  Millar 
Stewart  &  Al  v.  Wootering  164 
Stewarts'  Deborah  case  437 
Steel  v.  Taggart  165 

Stone's,  ad'r  v.  Massey  120,  188 
Stultz  v.  Dickey  136 

Sword  &  Adams  129,  120 

Swan  &  Dawes  195 

Swearingen  -v.  Pendleton 

167,  257,  284 
Sutton  v.  Connelly       -         352 

T. 

Taggert  v.  Toner  43 

&  Steele  165 

&  Cooper        -         376 

Talbot's,  less  -v.  Simpson 

412,  413 
Taylor  &  Lloyd's,  less  223,  407 

&Bevan       -        -    339 

Thompson  &  Morrow  396,  411 
Tod  v.  Tod's,  ex'rs  -  115 
Torbett  v.  Twining  51,  147 
Tower  &  Wright 
Trinity  Church  &  Matther  124 
Tucker  &  Wells  -  120 

&  Hassencleaver       192 

Tunis  &  Dorsey  171 

&  Frazier  -         174 

Turner  &  Brown          -        329 


Page 

Turner  &  Davy  &  Ux  407 

Turbett  v.  Tufbett  51 

V. 

Vanbuskirk  &  Holsback  327 
Vandergrift  &  Hall  55,  56 

Vanderin  &  Monis,  less  €7 
Vandyke  &  Al  &  Moody  223 
Vanzant  v.  Boileau  -  37 


W. 

Walkerer's  appeal 

&.  Byrne 

.  v.  Smith 

&  Shoemaker 


37 
319 
339 
397 
Wallace  v.  Elder        27,  35,  72 

&  Bovard  72 

Walmsley's,  less.  v.  Read  41, 75 
Walton  v.  Willis 
171,  358, 362,  364,  369,  375,  377 
Wampole  &  Al  &  Dallam    193 
Watson  &  Fries  177 

v.  Baily          -         410 

v.  Mercer       -         412 

Ward  &  M'Intire  411 

Watkins  &  Price  188 

Way  &  Adleman  124 

Webb  &  Evans',  less      -      396 

&Alw.  Clarke  208 

Wells  v  Tucker  150 

&  Berry  hill  177 

Weishaupt  &  Bremen 

129,  130,  186 

Welsh  y.  Murray  165 

West's  appeal  -  -  38 
Weston  v.  Stammers  -  67 
Wilcox  v.  Henry  -  49 

&  Fox  214,  440, 441, 443 


Wilson  v.  Wilson 

19,  55,212,  280,  327 

&  Might         -       40,  41 

v.  Hunts,  ex'r      -     290 

Williams  v.  Craig  178 

Willing  &  Crawford  &  Al    178 
Wiley  &  Gause  329 

White  &  Al  v.  Bannister's, 

ex's  -         -         308 

Whiteman  &  Stcever     -        50 


TABLE  OF  AMERICAN  CASES,  &c. 


XXHl 


Page 

Witmer  &  Haines  59 

Wistar  &  Miles  195 

Witman  v.  Norton  -  332 
Wootering  v.  Stewart  &  Al  164 
Wright  v.  Tower  165,  166 

Y. 

Yard  v.  Lea's,  ex'rs  -  294 
Yohe  v.  Barnet 

27,  29,  145,  19,4,  377 


Page 
41,  68 
-      110 
-  &  Silsby  &  Al       -     209 


Young  &  Eyster 

&  M'Cullough 


--  v.  Bickel 

244,  355,  361,  364',  418 

—  v.  Pleasants       -        248 

—  v.  Dillon  263,  421 


Z. 

Zebach  v.  Smith 


223 


A  TREATISE  ON  THE  LAW  OF  PENNSYLVANIA, 

RELATING  TO  THE 

ESTATES  OF  DECEDENTS. 


BOOK  I. 

OF  THE  CONSTITUTION  AND  POWERS  OF  THE  ORPHAN'S 

COURT. 


CHAP.  I. 

ORGANIZATION  OF  THE  COURT GENERAL  POWERS 

FORMS  OF  SUIT PROCESS — JUDGMENT — APPEAL. 

SECTION  I. 

Organization  and  general  powers  of  the  Court. 

ONE  of  the  earliest  acts  of  the  Proprietary  of  Penn- 
sylvania under  the  grant  of  Charles  II.  was  the  es- 
tablishment of  the  Orphan's  Court.  At  the  first  assem- 
bly held  at  Chester,  on  the  seventh  December,  1682, 
this  was  organized  with  the  other  courts  of  the  pro- 
vince, (a)  An  inquiry  into  the  provisions  of  the  early 
laws  on  this  subject,  would  serve  but  to  gratify  a 
useless  curiosity,  since  they  are  supplied  by  the  act 
of  twenty -seventh  March,  1713.  (6) 

By  the  first  section  of  this  act,  the  justices  of  the 
courts  of  General  Quarter  Sessions  of  the  peace  in 
each  county,  or  so  many  of  them  as  are  enabled  to 

(a)  Penn's  Lett.  August,  1683.  (6)  1  8m.  L.  81. 


10  GENERAL  POWERS.  [BOOK  i. 

hold  those  courts,  are  empowered,  in  the  same  week 
that  they  are  by  law  directed  to  hold  them,  or,  at 
such  times  as  they  see  occasion,  to  hold  and  keep  a 
court  of  record,  to  be  styled  the  Orphan's  Court;  and 
to  award  process  and  to  cause  to  come  before  them, 
all  persons  who  as  guardians,  trustees,  tutors,  executors, 
administrators,  or  otherwise  are  entrusted  with,  or  in 
any  wise  accountable  for  any  lands,  tenements,  goods, 
chattels  or  estate,  belonging  to  any  orphan,  or  person 
under  age;  and  to  cause  them  to  exhibit  within  a  rea- 
sonable time  true  and  perfect  inventories  and  accounts 
of  the  said  estates;  and  to  cause  the  registers  or  their 
deputies,  on  application  made  in  that  behalf,  to  trans- 
mit into  the  said  Orphan's  Court,  true  copies  or  dupli- 
cates of  all  such  bonds,  inventories,  accounts,  actings 
and  proceedings  whatsoever,  in  their  respective  offi- 
ces as  relate  to  the  said  estates;  and  to  order  the  pay- 
ment of  such  reasonable  fees  for  the  said  copies  and 
for  all  other  charges,  trouble  and  attendance  which 
any  officer  or  other  person  shall  necessarily  be  put 
upon  in  the  execution  of  this  act:  and  if  upon  hearing 
or  examination  thereof,  it  appears  to  the  justices  of 
the  said  court,  that  any  of  the  said  officers  have  mis- 
behaved themselves  to  ttye  prejudice  of  any  minor  or 
others,  concerned  for  them,  the  justices  are  required 
to  certify  the  same  accordingly,  which  shall  be  good 
evidence  for  the  party  grieved,  to  recover  his  dama- 
ges at  common  law. 

Where  insufficient  surety  has  been  taken  by  the 
register,  from  administrators  who  are  unable  to  make 
good  the  yalue  of  the  decedent's  estate,  the  court 
may  require  them  to  give  better  security  to  the 


CHAP,  i.]  GENERAL  POWERS.  11 

register  by  bond,  with  such  sureties  and  under  such 
penalties  as  it  may  approve.  And  if  the  adminis- 
trators embezzle,  waste  or  misapply,  any  part  of  the 
decedent's  estate,  or  neglect  or  refuse  to  give  such 
bonds,  the  court  may  revoke  the  letters  of  adminis- 
tration: and  new  letters  shall  be  granted  by  the  re- 
gister to  such  person  having  right  thereto,  as  will 
give  the  bonds  required,  (a) 

On  complaint  made  to  the  court  that  an  executrix 
having  minors  of  her  own,  or  being  concerned  for 
others,  is  married  or  like  to  be  married  to  another 
husband,  without  securing  the  minors'  portions,  or 
estates;  or  where  an  executor  or  other  person  having 
the  care  and  trust  of  minors'  estates  is  like  to  prove 
insolvent,  or  shall  refuse  or  neglect  to  exhibit  inven 
tories,  or  give  a  just  account  of  the  estates  in  their 
hands,  an  Orphan's  Court  may  be  held  forthwith,  and 
may  cause  such  executors  and  trustees,  as  also  such 
guardians  or  tutors  as  are  appointed  by  the  court  to 
give  security  to  the  orphans  or  minors  by  mortgage 
or  bonds  in  such  sums  and  with  such  sureties  as  the 
court  shall  judge  reasonable,  conditioned  for  the  per- 
formance of  their  respective  trusts  and  for  the  pay- 
ment of  the  legacies,  portions,  shares,  and  dividends 
of  estates,  real  and  personal  of  such  minors,  as  far  as 
they  have  assets,  as  also  for  their  maintenance  and 
education,  according  to  the  order  of  the  court.  (6) 

And  if  a  legatee  or  creditor,  or  person  interested 
in  the  real  or  personal  estate  of  a  decedent,  or  surety 
in  an  administration  bond,  shall  declare  on  oath  or 
affirmation,  that  he  believes  the  executor  or  adminis- 

(a)  1  Sm.  L.  82.  Act  1713.  Sec.  2.  (6)  Ib.  83.  Sec.  3. 


12  GENERAL  POWERS.  [BOOK  i. 

trator  is  wasting  or  mismanaging  the  estate  of  the 
decedent,  and  shall  apply  for  security,  the  court  may 
order  the  executor  to  give  bond  with  sureties,  and 
the  administrator  to  give  bond  with  such  further 
sureties,  as  it  may  think  proper.  And  on  the  neglect, 
or  refusal,  of  the  executor  or  administrator,  for  thirty 
days,  after  notice  of  such  order,  to  give  security,  the 
court  may  vacate  the  letters  testamentary  or  of  ad- 
ministration, and  award  new  letters  to  be  granted  by 
the  register,  to  such  persons,  and  upon  such  security 
as  it  may  think  proper;  and  may  compel  the  super- 
seded executor  or  administrator,  to  deliver  to  his 
successor  the  estate  of  the  decedent  remaining  in  his 
hands  on  the  pains  of  contempt,  (a) 

By  Sect.  1,  Act  nineteenth  April,  1794,  (6)  the 
Orphan's  Court  is  empowered  to  call  administrators  to 
account  touching  the  goods  of  their  decedent,  and  to 
make  distribution  of  the  residue  after  the  payment  of 
debts,  funeral  and  just  expenses,  amongst  the  parties 
entitled  thereto  5  and  having  decreed  distribution,  to 
compel  the  administrators  to  observe  it. 

The  court  is  also  empowered  to  admit  minors  to 
make  choice  of  guardians  or  tutors,  and  to  appoint 
them,  and  to  appoint  guardians,  next  friends  or  tutors 
for  such  as  are  too  young  or  otherwise  incapable  to 
make  choice  of  themselves:  and  at  the  instance  and 
request  of  executors,  administrators,  guardians,  or 
tutors,  to  direct  the  binding  out  of  minors,  apprentices 
to  trades,  husbandry,  and  other  employments,  (c) 

(a)   Act  4    April,    1797.    Sect.   1.     (c)  Act  27    March,  1713.    Sec.  7. 

3  Sm.  L.  296.  1  Sra.  L.  83. 

(6    3Sm.  L.  143. 


CHAP,  i.]  GENERAL  POWERS.  13 

It  was  doubtless  the  intention  of  the  legislature 
that  the  Orphan's  Court  should  carefully  superintend 
the  interests  of  minors,  and  that  the  assent  of  the 
court  or  guardian,  or  next  friend  appointed  by  it  should 
be  requisite  to  their  apprenticeship.  This  was  more 
practicable  when  the  act  was  passed,  than  in  the  pre- 
sent populous  state  of  the  country.  There  are  now 
no  instances  of  the  court  directing  the  maintenance 
and  education  of  minors j  nor  is  it  necessary  that  a 
next  friend  in  an  indenture  of  apprenticeship  should 
be  appointed  by  the  court,  (a) 

The  Orphan's  Court  has  power  to  make  partition 
of  the  real  estates  of  intestates  on  petition  of  the 
widow,  or  children,  if  of  age,  or  of  their  guardians  or 
next  friends,  if  under  age.  (b) 

It  may  direct  the  sale  of  the  real  estate  of  dece- 
dents in  the  following  cases.  1.  On  the  application 
of  the  administrator  for  the  payment  of  debts  and 
maintenance  of  the  children  until  the  eldest  comes  of 
age.  (c)  2.  On  the  petition  of  the  executor  or  admi- 
nistrator, after  final  settlement  of  the  administration 
account,  in  the  court,  if  there  be  not  sufficient  assets 
to  pay  the  balance  due  from  the  estate,  (d)  3.  At  the 
instance  of  a  guardian,  for  the  maintenance  and  edu- 
cation of  a  minor,  where  the  personal  estate  is  in- 
sufficient, (e)  4.  Where  the  heirs  or  distributees  of  an 
intestate  refuse  to  take  the  estate  at  the  valuation 
made  by  inquest.  (/) 

(a)  Decided  by  the  Supreme  Court,  (d)   Act   1    April,   1811.     5   Sin. 

in  the  case   of   Common  wealth,  L.  258. 

v.  Irwin.  Ms,  (e)   Act  7    April,  1807.     4  Sm.  L. 

(6)  Act  19  April,  1794.  Sec.22.  401. 

(c)  Act  19    April,  1794.  3  Sm.   L.  (/)    Act  2   April,   1804.    Sm.  L. 

150.  184. 


14  GENERAL  POWERS.  [BOOK  i. 

Where  a  devise  or  bequest  is  made  to  a  widow, 
her  assent  to  which  bars  her  dower,  the  court  is  em- 
powered to  cite  her  to  make  her  election  between 
the  devise  or  bequest,  and  her  dower  at  common 
law.  (a) 

If  any  person  duly  summoned  to  appear  in  the 
Orphan's  Court  ten  days  before  the  time  appointed 
for  his  appearance,  make  default,  the  court  may  attach 
him  for  contempt,  and  may  force  obedience  to  its 
warrants,  sentences  and  orders,  by  imprisonment  of 
body  or  sequestration  of  lands  and  goods  as  fully  as 
any  court  of  equity  may  or  can  do.  (b) 

The  court  has  authority  to  appoint  guardians  for 
old  soldiers,  and  to  compel  the  settlement  of  their 
accounts,  (c) 

And  in  the  acts  authorizing  the  sale  of  lands  of 
minors  or  others,  the  persons  directed  to  sell,  are 
most  commonly  obliged  by  law  to  exhibit  their  ac- 
counts for  settlement  in  this  court,  (d) 

The  change  of  government  consequent  on  the  re- 
volution made  but  little  alteration  in  the  organization 
and  powers  of  this  court.  By  the  constitution  of  1776, 
the  Orphan's  Courts  were  directed  to  be  held  quar- 
terly, in  each  city  and  county,  (e)  And  by  the  present 
the  judges  of  the  court  of  Common  Pleas,  any  two  of 
whom  make  a  quorum,compose  theOrphan's  Court.(/) 

By  the  act  of  thirteenth  April  1791,  for  carrying  into 
effect  the  provisions  of  the  constitution,(g)  it  is  enacted 


(a)  Act  1    April,  1811.    5  Sm.  L.  (e)  Chap.  11.    Sec.  26.    5  Sm. 
258.  428. 

(b)  Act  1713,  Sec.  8.  1  Sm.  L.  84.  (/)  Act  5.  Sec.  7. 

(c)  6  Read's  L.  27.  (g)  Sm.  L.  3  vol.  30. 

(d)  1  Sm.   L.  87.  n. 


OHAP.  i.]  GENERAL  POWERS.  15 

that  the  Orphan's  Court  shall  be  held  at  such  stated 
times  as  the  judges  shall  ordain  for  each  year.  By  the 
act  of  twenty -fourth  February  1806,  (a)  the  judges  of 
the  court  of  Common  Pleas,  of  the  first  district,  or  any 
two  of  them,  the  president  being  one,  shall  compose 
and  hold  an  Orphan's  Court  in  that  district  at  such 
times  as  they  may  think  proper:  and  the  judges  of  the 
courts  of  Common  Pleas,  in  each  county,  wherein  the 
court  is  to  continue  two  weeks,  or  any  two  of  them, 
the  president  being  one,  shall  hold  the  Orphan's 
Court  in  such  counties  in  the  first  week  of  each  term, 
and  at  such  other  times  as  they  may  think  proper: 
and  in  the  other  counties  the  court  so  constituted  may 
fix  such  times  for  their  sessions  as  they  may  find  con- 
venient. Any  two  judges  may  hold  the  Orphan's 
Court  in  each  county,  for  the  appointment  of  guar- 
dians, and  other  business;  but  a  party  interested  in 
any  case,  may  request  a  continuance  thereof  until  the 
president  shall  be  able  to  attend. 

Pursuant  to  the  act  of  1806  (b)  the  judges  of  the  first 
district  composed  of  the  city  and  county  of  Philadel- 
phia, hold  a  stated  session  on  the  third  Friday  of  every 
month,  at  which  the  general  business  of  the  court  is 
transacted. — No  applications  are  received  on  other 
days,  except  in  cases  of  necessity,  which  must  be 
shown  to  exist  before  they  will  be  considered, — and 
the  court  have  directed  that  the  evidence  of  such 
necessity  shall  be  laid  before  them  in  writing  by  affi- 
davit or  otherwise— to  be  placed  upon  the  record. 

(a)  4  Sm.  L.  275.  P.  Q.  S.  and  O.  C.  njade  1  January, 

(6)  See  the  rules  of  courts  of  C.     1824 — pages  17,  18  and  19. 


16  FORM  OF  SUIT  AND  PROCESS.          [BOOK  i. 

SECTION  II. 

Form  of  Suit  and  Process. 

Suits  fcre  commenced  in  this  court  by  petition  and 
citation  or  subpoena. 

The  petition  states  the  character  in  which  the  party 
applies,  the  grievance  of  which  he  complains,  and 
concludes  with  a  prayer  to  the  court,  to  award  a  cita^ 
tion,  if  any  be  required,  or  to  make  such  order  as  may 
be  necessary  for  his  relief,  (a) 

The  citation  or  subpoena  is  a  writ  directed  to 
the  defendant  commanding  him  to  appear  on  a  day 
given,  and  to  do  a  certain  thing  therein  specified, 
or  to  shew  cause  why  he  should  not.  (6)  It  is  never 
issued,  unless  to  witnesses,  but  on  a  special  order 
of  the  court.  Against  guardians  it  is  usually  to 
command  them  to  settle  their  accounts-,  or  to  shew 
cause  why  they  should  not  be  removed:  against  trus- 
tees to  file  a  statement  of  their  trust,  or  to  make  a  set- 
tlement thereof:  against  a  widow  executrix,  to  com- 
mand her  to  secure  the  minor's  estates:  against  ex- 
ecutors and  administrators,  to  give  security  for  the 
faithful  performance  of  their  duties;  to  file  their  ac- 
counts; to  make  distribution,  &c.  &c. 

The  service  of  the  citation  must  be  made  ten  days 
before  the  return  day,  (c)  and  may  be  personal,  or  it 
may  be  left  at  the  dwelling  of  the  person  cited,  (d)  It 
may  be  served  by  any  person  competent  to  prove 
the  service. 

In  England,  if  on  the  service  of  the  subpoena,  con- 
temptuous words  be  spoken  of  it,  the  offender,  on  mo- 

(a)  Appendix,  No.  1.  (c)  Sin.  L.  84. 

(6)  Appendix,  2.  (d)  Bujac  v.  Morgan,  3  Yeates,  258. 


CHAF.  i.J          FORM  OF  SUIT  AND  PROCESS.  17 

tion,  supported  by  affidavit  of  two  persons,  will  be  com- 
mitted without  further  examination;  and  a  single  affi- 
davit is  sufficient  to  grant  an  attachment  upon  which 
he  may  be  examined.  If  on  such  examination  the 
misdemeanour  be  confessed,  he  will  be  committed-, 
but  if  denied  he  will  be  discharged,  but  not  without 
costs  in  respect  to  the  oath  made  against  him.  (a) 

If  the  person  serving  the  subpoena  be  beaten  or 
abused,  the  offender  will  on  affidavit  of  the  fact,  by 
more  than  one  witness  be  committed.  But  though 
contemptuous  words  are  spoken  of  a  subpoena,  and  the 
person  serving  it  be  severely  beaten,  yet  if  the  facts 
are  proven  by  the  oath  of  a  single  person  only,  the 
court  will  not,  in  the  first  instance,  order  the  offender 
to  stand  committed,  but  make  an  order  upon  him  to 
shew  cause  why  he  should  not  stand  committed.  (6) 

Whenever  a  person  is  called  upon  to  answer  for  a 
contempt,  the  court  exercises  its  sound  discretion  on 
the  subject,  (c)  and  considers  whether  the  party  acted 
under  a  mistake  or  contumaciously  towards  the  court, 
(d) 

But  in  Pennsylvania  it  may  be  well  doubted  whether 
in  such  cases  the  court  could  punish  the  party  for  con- 
tempt; since  by  the  act  of  third  April,  1809,  (e)  made 
perpetual  by  the  act  of  thirty-first  March,  1812,  (/)  the 
power  of  the  several  courts  to  issue  attachments  and 
inflict  summary  punishments  for  contempts  of  court  is 
restricted  "  to  the  official  misconduct  of  the  officers  of 
such  courts  respectively,  to  the  negligence  or  disobedi- 

fa)  Harr.  Cb.  199—200.  (d)  Page  ex  parte,  17  Vez.  61. 

(6)3  Atk.  219.  (e)  5  Sm.  L.  55. 

(c)  Ball  v.  Coutts,  I  Vez.  &  Beames,  (/)  Ib.  384. 
297.  ' 


18  FORM  OF  SUIT  AND  PROCESS.  [BOOK  i. 

ence  of  officers,  parties,  jurors,  or  witnesses,  against 
the  lawful  process  of  the  court,  to  the  misbehaviour 
of  any  person  in  the  presence  of  the  court,  obstruct- 
ing the  administration  of  justice."  And  if  the  court 
have  power  to  punish  for  othpr  contempts,  it  is  by  fine 
only,  in  the  first  instance.  The  party,  however,  may 
be  committed  to  prison  by  the  sheriff  until  such  fine 
be  paid  or  discharged,  or  if  he  be  unable  to  pay  it, 
he  may  be  imprisoned  by  the  court  for  any  time  not 
exceeding  three  months,  (a) 

The  defendant  appears  personally  or  by  attorney, 
But  it  is  not  the  practice  to  enter  his  appearance  on 
record.  Yet  such  entry  might  prevent  much  embar- 
rasment  in  the  subsequent  stages  of  the  cause,  should 
the  defendant  deny  having  appeared,  or  suggestions 
to  that  effect  be  made  by  others.  If  there  be  a  minor 
party  to  the  suit  he  should  appear  by  guardian-,  (b) 
if  he  have  no  guardian,  the  court,  as  in  a  suit  for  par- 
tition, will  assign  him  one. 

The  neglect  of  the  defendant  to  appear,  is  consider- 
ed a  contempt  of  the  court,  and  a  second  citation  will 
be  issued  upon  an  affidavit,  that  the  first  was  duly 
served,  ten  days  before  the  return  day.  (c)  The  second 
citation,  which  must  also  be  served  at  least  ten  days 
before  the  return  day,  commands  the  defendant  to 
shew  cause  why  an  attachment  for  contempt  should 
not  issue  against  him.  If  upon  this,  he  do  not  appear,  and 
due  proof  of  the  service  be  made,  the  court  will  grant 
an  attachment,  commanding  the  sheriff  to  bring  the 
defendant  before  them,  (d) 

(a)  5  Sm.  L.  56.  (c)  Appen.  3. 

(6)  1  Harr.  Ch.  78.  (d)  Appen.  4. 


CHAP,  i.]          FORM  OF  SUIT  AND  PROCESS.  19 

The  return  of  the  sheriff  to  the  writ  of  attachment, 
is  either,  that  the  party  is  not  found,  or  that  he  has 
taken,  and  has  him  in  custody,  (a)  If  he  be  taken,  he 
must  enter  his  appearance,  and  perform  that  which 
was  required  by  the  citation,  or  shew  cause  why  he 
should  not;  and  he  must  pay  all  costs  which  have  ac- 
crued by  his  standing  out.  (6)  When  the  defendant  is 
in  custody  on  the  attachment,  he  lies  in  prison,  or 
gives  bail  for  his  appearance  at  the  time  assigned. 

We  are  next  to  inquire,  by  what  means  a  party  ab- 
sconding, to  avoid  the  process  of  the  court,  may  be 
compelled  to  appear. 

By  the  seventh  section  of  the  act  of  1713,  the  court 
may  compel  obedience  to  its  warrants,  sentences,  and 
orders,  by  imprisonment  of  body,  or  sequestration  of 
goods,  as  fully  as  any  court  of  equity  may  or  can 
do.  (c)  But  obedience  to  the  warrant  or  citation  of 
the  court  cannot  be  enforced  by  imprisonment,  where 
the  party  cannot  be  found  5  but  his  appearance  may 
be  compelled,  by  sequestration  of  his  lands  or  goods.(d) 
As  the  power  of  the  Orphan's  Court,  in  this  particu- 
lar, is  assimilated  to  that  of  a  court  of  equity,  and  as 
from  the  paucity  of  cases  in  which  recourse  has  been 
necessary  to  other  process  than  citation,  we  have 
not  an  established  practice  among  ourselves,  we 
must  resort  to  the  chancery  courts  for  rules  upon  this 
head. 

The  practice  of  chancery,  which  we  are  about  to 
state,  from  the  attachment  to  the  sequestration,  is 
founded  on  the  contempt  in  not  appearing  to  the  sub 

(a)  Appen.  5.  1  Harr.  Ch.  200.  (c)  3  Binn.  B.  550. 

(6)  Harr.  Ch.  201.  2  Madd.  166.  (d)  1  Chan.  Cas.  139. 


20  FORM  OF  SUIT  AND  PROCESS.  [BOOK  i. 

pcena  or  citation  after  service  thereof  consequentjy 
if  the  subpoena  were  not  served,  the  attachment,  &c. 
could  not  issue.  Hence  a  party  having  knowledge 
that  a  citation  had  issued  against  him,  and  avoiding  the 
service  by  absconding  might  bid  defiance  to  the 
court.  This  was  remedied  in  England  by  Stat.  G.  II, 
c.  25.  But  is  it  less  a  contempt  to  avoid  the  process 
of  the  court  than  to  disobey  it?  Is  not  public  justice 
as  much  insulted  by  the  one  as  by  the  other?  And  a 
defendant  cannot  complain  who  keeps  out  of  the  way, 
that  the  ultimate  process  of  the  court  is  awarded 
against  him,  when  he  may  remove  all  inconvenience 
by  appearance. 

In  a  court  of  chancery  then  the  process  of  sequestra- 
tion is  a  writ  or  commission,  sometimes  directed  to  the 
sheriff — but  more  usually  to  four  or  more  commission- 
ers of  the  complainant's  choice,  authorizing  them  to 
enter  on  the  real  and  personal  estate  of  the  defend- 
ant, and  to  take  the  rents,  issues,  and  profits  into  their 
hands,  and  keep  possession  thereof,  or  pay  them  as 
the  court  shall  order,  until  the  party  in  contempt,  do 
that  which  is  enjoined  upon  him  by  the  writ,  (a) 

It  is  issued  by  order  of  the  court,  on  petition  of  the 
complainant,  setting  forth  the  several  unsuccessful  at- 
tempts to  serve  the  citation  or  to  execute  the  attach- 
ments. In  England,  if  "  non  est  inventus"  be  returned 
to  the  first  attachment,  and  the  party  persists  in  his 
contumacy,  an  attachment  with  proclamation  issues, 
commanding  him  to  appear  on  pain  of  his  allegiance 
(sub  poend  legiancice)  at  a  day  given.  (6)  If  this  also  be 
returned  "  non  est"  a  commission  of  ^rebellion  may  is- 

(a)  1  Harr.  Ch.  191.  2  Ch.  Ca.  163.  (&)  1  Harr,  Ch.  183. 


CHAP,  i.]  FORM  OF  SUIT  AND  PROCESS.  21 

sue.  (a)  This  writ  is  sometimes  directed  to  the  sheriff, 
but  generally  to  commissioners  jointly  and  severally 
commanding  them  to  attach,  or  cause  to  be  attached, 
the  defendant  as  a  rebel  and  contemner  of  the  law. 
If  the  commissioners  return  "  non  est  inventus"  to  the 
commission  of  rebellion,  a  Serjeant  at  arms  is  moved 
for.  (6)  This  is  an  officer  whose  duty  is  to  attend  the 
chancellor,  and  execute  all  warrants  granted  against 
one  who  has  stood  out  a  commission  of  rebellion,  &c.; 
and,  if  he  certifies  that,  the  defendant  cannot  be  taken, 
a  motion  is  made  for  an  order  for-  sequestration,  (c) 

Thus,  in  order  to  obtain  a  writ  of  sequestration  in  the 
court  of  chancery,  the  plaintiff  must  first  issue  a  sub- 
poena or  citation,  an  attachment,  an  attachment  with 
proclamation,  a  commission  of  rebellion,  and  must  ob- 
tain an  order  for  a  Serjeant  at  arms. 

In  the  Orphan's  Court,  it  is  presumed  that  the  course 
would  be,  1.  A  petition  for  citation.  2.  Return  on 
oath  or  affirmation  of  the  service  of  the  citation,  or 
that  the  party  could  not  be  found,  and,  that  he  had 
absconded  to  avoid  service.  3.  Citation  to  shew  cause 
why  an  attachment  should  not  issue.  4.  Proof  of  ser- 
vice or  that  the  defendant  cannot  be  found.  5;  Attach- 
ment, (d)  6.  Return  "  non  est  inventus.''  7.  Attach- 
ment with  proclamation,  (e)  8.  Return  "  non  est  in- 
ventus"(f)  9.  Sequestration,  (g)  Although  by  this 
course  the  party  has  not  precisely  the  same  form  of 
notification,  as  in  chancery,  yet  he  has  the  like  oppor- 
tunities and  number  of  notices,  to  come  in  and  purge 
his  contempt,  and  answer  over. 

(a)  1  Han.  Ch.  185-  (e)  Append  6. 

(6)Harr.  Ch.  188.  (/)  Append.  7. 

(cj  K>.  191.  (s-)  Append.  8. 
(a)  Append.  4. 


22  FORM  OF  SUIT  AND  PROCESS.  [BOOKI. 

The  service  of  each  citation  should  be  ten  days  be- 
fore the  return  day.  The  attachment  may  be  return- 
able instanter;  or  where  the  defendant  is  lurking  with- 
in the  jurisdiction  of  the  court,  on  the  next  stated  Or- 
phan's Court  day.  If  an  attachment  with  proclama- 
tion issue,  the  time  given  to  the  defendant  to  appear 
should  be  from  one  stated  court  day  to  another,  or 
thirty  days:  This  is  analagous  to  the  time  given  to 
parties  interested  in  proceedings  before  the  court, 
upon  whom  personal  service  cannot  be  made:  and  as 
in  those  cases,  notice  should  be  published  in  one  or 
more  newspaper  in  the  county  where  the  court  sits, 
or  if  there  be  no  newspapers  published  in  such  coun- 
ty, then  in  those  of  the  nearest  county  in  which  news- 
papers are  published.  And  due  proof  of  such  publi- 
cations should  be  made.  For  if  the  court  will  not  do 
any  act  by  which  the  representative  of  an  intestate, 
however  slightly  interested,  shall  be  concluded,  with 
out  such  notice,  a  fortiori  they  will  not  take  from  a 
party  his  estate,  real  and  personal,  without  such  no- 
tice. 

The  commission  of  sequestration  being  delivered 
to  the  sequestrators,  they  proceed  to  take  possession 
of  the  real  and  personal  estate  of  the  defendant:  and 
the  plaintiff  may  obtain  an  order  for  the  tenants  to 
attorn,  or  pay  the  rents  to  the  sequestrators,  (a)  or  for 
the  sale  of  the  goods,  when  perishable,  (b)  But  they 
cannot  seize  the  land  itself,  (c)  The  commission- 
ers are  the  officers  of  the  court,  and  are  account- 
able to  it,  for  the  execution  of  their  office,  and  are 
to  conduct  themselves  by  its  directions;  they  are 

(o)  Hyde  v.  Greenhill,  1  Dick.  107.          Sed.  Contra  Ambl.  421., 
(b)  Mitchel  v.  Draper,  9  Vez.  208.          (c)  1  Dick.  107. 


CHAP,  i.]          FORM  OF  SUIT  AND  PROCESS.  23 

to  make  return  from  time  to  time,  of  what  they  have 
seized;  to  account  for  the  property  which  comes  to 
their  hands,  to  bring  the  money  they  may  receive,  in- 
to court,  to  be  put  to  interest  or  otherwise  disposed 
of,  as  it  shall  determine,  (a) 

It  is  not  usual  to  pay  money  to  the  plaintiff,  it  com- 
monly remains  in  court  till  the  defendant  has  appear- 
ed and  cleared  his  contempts-,  and  then  whatever  has 
been  seized,  by  virtue  of  the  sequestration,  is  to  be 
paid  to  him.  The  court  however,  have  the  whole 
under  its  control  and  will  act  according  to  the  equity 
and  circumstances  of  each  case.  (6) 

As  the  sequestrators  are  officers  of  the  court,  the 
plaintiff  is  not  answerable  for  their  acts,  (e)  They 
may  possess  themselves  of  every  species  of  property 
owned  by  the  defendant,  (d)  They  cannot  sell  with- 
out leave  of  the  court,  (e)  Where  they  seize  goods 
they  are  permitted  to  take  them  from  the  premises, 
though  the  sequestration  be  irregular.  (/)  The  seques 
tration  binds  from  the  time  of  awarding  the  commis- 
sion, and  not  from  the  time  of  executing  it  only,  (g) 

The  compensation  allowed  to  the  sequestrators,  is 
such  as  the  court  shall  decree  under  all  the  circum- 
stances of  the  case.(^) 

A  voluntary  and  fraudulent  conveyance  is  no  bar 
to  the  sequestration.  But  if  any  one  claim  the  estate 
sequestered  by  title  paramount,  mortgage,  judgment, 
lease  or  otherwise,  he  may  move  the  court  to  be  ex- 
amined with  regard  to  his  interest.  In  such  case  the 

(a)  Harr.  Ch.  192.  (e)  1  Harr.  Ch.  195. 

(ft)  1  Harr.  Ch.  192.  (/)  Ib.  193. 

(c)  Ib.  194.  (g)  t  Vern.  58.  Contra  1  Vez.  181. 

(d)Ib,193.  (A)  1  Harr.  Cb.  195. 


24  FORM  OF  SUIT  AND  PROCESS.  [BOOK  it 

plaintiff  may  exhibit  interrogatories  to  the  claimant, 
to  discover  his  title,  the  court  will  hear  evidence  from 
both  parties;  and  if  it  appear  that  the  claimant  has 
a  plain  title  the  court  will  discharge  the  sequestra- 
tion, (a) 

The  writ  of  sequestration  is  used  to  enforce  the 
judgment,  or  decree  of  the  court,  as  well  as  to  com- 
pel the  appearance  of  the  party.  For  if  a  party  do 
not  obey  a  decree  all  the  process  of  contempt  may 
issue  against  him;  and  if  he  be  not  arrested,  the  court 
will  grant  a  sequestration.  So  if  he  be  taken  and  lie 
in  prison,  obstinately  refusing  to  perform  a  decree,  a 
writ  of  sequestration  may  issue.  (6)  And  where  the 
decree  is  for  the  payment  of  money  the  court  will 
order  the  sale  of  goods,  and  direct  the  proceeds,  and 
the  rents  and  profits  of  lands  to  be  applied  in  dis- 
charge of  the  debt  and  cost,  (c)  But  there  is  no  in- 
stance of  an  order  to  sell,  under  a  sequestration  a  sub- 
ject which  passes  by  title  and  not  by  delivery,  and 
therefore  real  estates  cannot  be  sold,  (d) 

The  sequestration  may  be  discharged  by  one  of 
the  following  modes.  1 .  Error  in  the  anterior  pro- 
cess. 2.  Extinction  of  the  defendant's  interest  in  the 
estate  sequestered.  3.  By  the  defendant  appearing 
and  purging  his  contempt  and  performing  that  which 
the  court  has  ordered. 

1.  As  this  high  and  extraordinary  process  is  found- 
ed on  the  principle  that  the  defendant  has  contemned 
the  authority  of  the  state  exercised  by  its  courts  of 
justice,  the  court  will  take  great  care  that  the  party 

(a)l  Harr.  Cb.  193.  1  Vez.  181.  (d}  Shaw  ».  Wright,  3  Vez.  22. 
(6)  2  Ch.  Rep.  151.  Sutton  v.  Tone,  1  Dick.  107. 

.(c)  1  Vez.  180.  Pract.  Reg.  320. 


CHAP,  i.]          FORM  OF  SUIT  AND  PROCESS.  25 

is  really  subject  to  this  writ.  If  he  be  not  within  the 
court's  jurisdiction;  if  there  be  not  sufficient  time  be- 
tween the  test  and  return  of  the  several  citations;  if 
the  return  to  the  attachment  be  not  on  oath;  if  there 
be  not  four  weeks  notice  of  the  attachment  with  the 
proclamation;  if  the  return  thereto  be  not  regularly 
made;  or  if  there  be  any  other  error  or  oversight  by 
which  the  party  might  possibly  not  have  had  notice  in 
due  form  and  time,  of  the  process  anterior  to  the  writ 
of  sequestration,  the  court  on  due  proof  of  the  facts 
will  discharge  the  commission. 

2.  If  the  estate  sequestered  be  a  leasehold,  or  an 
annuity  of  the  wife,  issuing  out  of  the  estate  of  the 
husband;(a)  or  an  estate  for  life,  of  the  party,  or  for 
the  life  of  another;  tenancy  in  tail  after  possibility  of 
issue  extinct;  or  by  the  curtesy;  in  the  first  of  these 
cases  the  sequestration  will  die  with  the  term,  and  in 
the  others  with  the  life  of  the  party  in  interest. 

3.  In  considering  the  third  mode  of  discharging  the 
sequestration,  it  may  not  be  amiss,  to  offer  a  few  re- 
marks on  contempts.    A  contempt  as  now  understood 
is  a  disobedience  to  the  authority  of  the  court,  and 
commonly  consists,  in  a  party  doing  otherwise  than  he 
is  enjoined,  or  not  doing  that  which  he  is  commanded 
by  the  process,  decree  or  order  of  the  court.  (6.)  Where 
the  party  is  before  the  court,  on  any  process  of  con- 
tempt he  will  be  imprisoned  until  its  order  be  com- 
plied with,  and  until  he  shall  have  cleared  himself  of 
his  contempts.     If  he  purge  his  contempt  on  oath  on 
interrogatories  filed,  he  will  be  discharged  without 
punishment,  save  the  payment  of  costs.  As  the  seques- 

(a)  1  Ch.  Rep.  247.  (i)  1  Harr.  Ch.  257. 


26  JUDGMENT  AND  APPEAL.  [BOOK  i. 

tration  on  mesne  process  has  for  its  object  the  appear- 
ance only,  of  the  party,  it  is  quashed  on  his  reconcilia- 
tion with  the  court.  But  if  it  be  to  enforce  a  decree, 
as  to  compel  guardians  or  executors  to  settle  their 
accounts,  or  administrators  to  make  distribution,  the 
sequestration  will  not  be  removed  whilst  the  decree 
is  in  force  and  unobeyed. 

There  is  a  process  called  writ  of  distringas,  issued 
against  corporations  aggregate,  when  they  refuse  to 
come  in  on  the  citation,  or  to  obey  the  decree  of  the 
court,  (a)  By  it  the  sheriff  is  commanded  to  make  a 
distress  on  the  lands  and  tenements,  goods  and  chat- 
tels, rents  and  profits  of  lands  of  the  corporation,  until 
it  appear  to  the  citation,  or  if  there  be  a  decree,  until 
it  obey  the  order  of  the  court.  There  is  seldom  oc- 
casion for  this  writ,  yet  it  may  become  necessary 
where  corporations  act  as  executors. 

SECTION  III. 

Of  the  Judgment  and  Appeal. 
The  judgment  of  the  court  is  its  order  or  decree 
on  the  subjects  submitted  for  its  consideration.  It  is 
either  of  course,  and  entered  without  a  particular  or- 
der, or  it  is  entered  by  the  special  direction  of  the 
court.  Of  the  first  kind  are  the  provisional  orders  on 
the  accounts  sent  by  the  register  to  this  court  for  con- 
firmation. These  accounts  are  not  formally  present- 
ed to  the  court,  nor  is  judgment  passed  upon  them  in- 
dividually; but  the  clerk  indorses  upon  them  "  con- 
firmed nisi"  and  enters  this  judgment  of  confirmation 
upon  his  record.  The  practice  is  the  same  in  relation 

(a)  10  Rep.  32.    1  Harr.  Ch.  264. 


QHAP.  L]  JUGDMENT  AND  APPEAL.  27 

to  the  reports  of  auditors,  unless  exceptions  be  taken, 
at  the  court  to  which  they  are  returned.  In  other 
cases  the  judgment  is  by  special  order  made  on  pro- 
ceedings read  and  examined  in  open  court. 

We  have  already  considered  the  means  employed 
by  the  court  to  carry  its  judgments  into  execution. 
All  of  which  are  founded  on  the  contempt  of  the 
party,  against  whom  the  whole  of  the  process  from 
the  attachment  to  the  sequestration  may  be  issued. 
And  on  a  sequestration  for  compelling  the  perform- 
ance of  a  decree,  the  court  will  direct  the  personal 
property  to  be  sold,  and  the  proceeds,  and  the  rents 
and  profits  of  the  real  estate  to  be  paid  to  him  in  whose 
favour  the  decree  is  made.  Thus  the  attachment  will 
operate  as  a  capias  satisfaciendum  and  the  seques- 
tration or  distringas  as  a  Jieri  facias. 

If  the  facts  in  a  case  before  the  Orphan's  Court  be 
disputed,  it  may  send  an  issue  to  the  common  pleas 
to  ascertain  them,  (a)  In  exparte  Pleasants,  first  April, 
1821,  the  Orphan's  Court  of  Philadelphia,  after  argu- 
ment, expressly  decided  that  they  had  not  this  power. 
The  case  was  argued  by  Binney  denying,  and  J.  R. 
Ingersoll  affirming,  the  power  of  the  court. 

In  support  of  the  negative,  it  was  said,  that  this  appli- 
cation was  of  the  first  impression,  and  that  it  might  be 
confidently  asserted,  that  during  one  hundred  and  forty 
years  there  was  no  instance  of  such  a  course  of  pro- 
ceeding j  that  this  strong  argument  was  sought  to 
be  obviated  by  attributing  to  the  Orphan's  Court  all 
the  powers  of  a  Court  of  Chancery.  But  there  was 

(a)  Yohe  v.  Barnet,  1  Binn.  364.         R.  143.  Finneyt.  Moore,  8  Sergt. 
Wallace  v.  Elder,  5  Sergt.  and          and  R.  346. 


28  JUDGMENT  AND  APPEAL.  [BOOK  i. 

only  one  point  of  resemblance  between  the  Orphan's 
Court  and  the  Court  of  Chancery,  the  power  to  de- 
termine facts  without  the  assistance  of  a  jury.     That 
in  the  latter  court,  an  issue  was  not  of  course,  except 
in  questions  of  devisavit  vel  non,  and  of  tithes.  In  other 
cases  it  was  discretionary.    It  is  not  so  here.    This  is 
a  court  of  limited  jurisdiction,  and  the  power  to  direct 
an  issue  must  be  found  in  the  act  of  assembly,  or 
must  be  sanctioned  by  long  and  established  practice. 
That  there  was  another  strong  objection  to  granting 
an  issue  by  this  court.  It  would  establish  a  precedent, 
which  would  be  generally  followed,  introducing  with 
the  cause,  the  great  delays  and  enormous  expenses, 
with  which  the  Courts  of  Chancery  are  so  much  re- 
proached.     At   the  establishment  of  the  Orphan's 
Court  promptness  of  decision  was  required  in  Penn- 
sylvania, and  the  fair  inference  is,  that  the  Orphan's 
Court  was  to  decide  upon  the  subjects  of  its  jurisdic- 
tion summarily.  This  is  confirmed  by  the  various  acts 
of  assembly  establishing  this  court,  which  show  that 
a  power  to  send  out  an  issue  does  not  exist.     The  act 
of  twenty-seventh  March,  1713,  (a)  contains  a  specific 
enumeration  of  the  powers  delegated  to  the  Orphan's 
Court.  In  the  second  section  it  is  particularly  called,  to 
decide  on  complicated  facts,  waste  and  embezzlement. 
The  eighth  section  empowers  the  court  to  enforce  its 
sentences,  warrants  and  orders,  as  fully  as  any  court 
of  equity.     But  this  has  reference  only  to  the  process 
of  execution,  pre-supposing  a  decree,  and  has  no  re- 
lation to  the  mode  of  proceeding  on  wjiich  it  is  found- 
ed.    The  registers  court,  had  no  power  to  direct  an 

(a)  1  Smith,  382, 


CHAP,  i.]  JUDGMENT  AND  APPEAL.  29 

issue  until  it  was  given  by  act  of  assembly;  and  the  act 
of  thirteenth  April,  1791,  (a)  giving  such  power,  pro- 
vides that  facts  determined  upon  an  issue  shall  not 
be  re-examined  on  appeal.  So  perfectly  well  settled 
has  been  the  understanding  upon  this  subject  that 
the  practice  has  always  been  to  appoint  auditors,  be- 
cause the  issue  when  tried  and  returned  would  not 
be  conclusive-,  and  the  benefit  of  appeal  being,  by  the 
ninth  section  of  the  act  of  March,  1713,  (b)  in  all  cases 
reserved,  where  any  definitive  sentence  or  judgment 
is  given  by  the  Orphan's  Court,  new  exceptions  might 
be  taken  and  discussed  de  novo  upon  the  appeal.  The 
case  of  llohe  v.  Baiwet,  (c)  in  which  the  Chief  Justice 
says  "  if  necessary,  facts  may  be  ascertained  by  a  jury," 
may  seem  opposed  to  this  view  of  the  subject.  But 
this  was  not  the  point  in  controversy,  nor  was  it  ne- 
cessary to  advert  to  it,  for  the  determination  of  the 
case,  and  the  opinion  of  the  judge  is  therefore  but  an 
obiter  dictum.  In  another  part  of  that  case  the  same 
judge  relies  upon  the  fact  of  "  no  trace"  of  the  exer- 
cise by  the  courts  in  this  state,  of  the  powers  exer- 
cised by  the  Courts  of  Chancery  in  England  of  insist- 
ing upon  some  provision  for  the  wife  when  the  hus- 
band applied  for  her  personal  property,  as  conclusive 
proof,  that  they  possessed  not  such  power.  Another 
strong  argument  against  the  authority  claimed  for  the 
Orphan's  Court  may  be  drawn  from  the  particular 
situation  of  the  Common  Pleas  of  this  county  in  rela- 
tion to  that  court.  It  has  no  civil  jurisdiction  where 
the  amount  of  controversy  exceeds  one  hundred  dol- 
lars, and  it  can  scarce  be  contended  that  by  implica- 

.  (a)  3  Son.  L.  34,  (b)  Sm.  L.  85.  (c)  1  Binn.  364. 


30  JUDGMENT  AND  APPEAL.  [BOOK.  i. 

tion  it  could  receive  from  the  Orphan's  Court  power 
to  determine  a  cause  whose  amount  might  exceed  an 
hundred  thousand.  Nor  is  there  a  want  of  remedy  in 
this  case — a,  particular  tribunal  has  been  erected  for 
distributing  the  assets  among  creditors  in  case  of  an 
alleged  deficiency.  The  Orphan's  Court  has  power 
to  appoint  three  or  more  auditors  for  that  purpose,  (a) 
Upon  principle  therefore  as  well  as  expediency  the 
issue  ought  to  be  refused. 

Mr.  Ingersoll  in  the  affirmative  relied,  on  the  prac- 
tice of  chancery  in  cases  of  doubtful  fact  and  alledged 
fraud,  and  on  the  position  that  the  Orphan's  Court  is 
constituted  with  ordinary  chancery  powers.  This  he 
inferred  from  its  mode  of  proof  by  deposition,  its  mode 
of  enforcement  by  attachment,  the  subjects  of  its  juris- 
diction, peculiarly  those  of  a  Court  of  Chancery,  guar- 
dians, trustees,  tutors,  executors  and  administrators, 
— its  mode  to  compel  them  to  make  an  account,  and 
by  its  daily  recurrence  to  the  practice  of  the  Courts 
of  Chancery  to  execute  its  powers.  Hence,  the  au- 
thority of  the  court  to  appoint  auditors,  whose  report 
like  the  finding  of  the  issue,  is  not  conclusive.  The 
court  never  receive  the  finding  on  the  issue,  unless  it  is 
satisfactory j  and  they  either  direct  a  new  trial  or  reject 
it  altogether.  It  is  emphatically  to  inform,  not  to  di- 
rect the  consciences  of  the  judges.  The  power  exer- 
cised by  the  Circuit  Courts  to  direct  an  issue  from 
the  powers  and  practice  necessarily  inherent  in  their 
character  as  a  Court  of  Equity  is  an  analogous  case. 
But  a  still  closer  and  conclusive  analogy  is  found  in 
the  power  of  the  Supreme  Court  of  the  state,  which  is 

(a)  Sra.  L.  149. 


CHAP,  i.]  JUDGMENT  AND  APPEAL.  31 

declared  to  be  inherent,  (a)  But  the  right  to  direct  an  is- 
sue has  been  expressly  decided  by  the  Supreme  Court, 
in  Yoke  v.  Barnet,  whose  opinion  was  delivered  by  the 
Chief  Justice.  Nor,  was  that  opinion,  an  obiter  dictum.  If 
not  the  very  point  in  issue,  it  was  at  least  the  necessary 
foundation  for  the  decision,  without  which  it  could 
not  have  been  pronounced.  It  contemplates  the  ex- 
istence of  incidental,  as  well  as  direct  powers,  of  such 
as  are  derived  from  the  nature  of  the  court  as  well  as 
from  the  act  of  assembly.  It  was  perhaps  the  very 
point  in  the  cause.  The  marginal  note  made  by  Mr. 
Binney  so  epitomizes  it. 
Hallowell,  President. 

James  Kinsey,  administrator  of  Elizabeth  Lovett,  de- 
ceased, one  of  the  creditors  of  the  estate  of  Samuel 
Pleasants,  deceased,  by  whom  the  exceptions  are  fil- 
ed, prays  the  court  to  direct  an  issue  to  try  certain 
matters  of  fact  arising  out  of  the  exceptions.  Having 
been,  when  at  the  bar,  of  counsel  with  the  executor,  I 
give  no  opinion  in  any  other  part  of  this  case  except- 
ing on  the  abstract  question,  in  which  at  the  request  of 
both  parties,  I  have  heard  the  argument,  and  consent- 
ed to  take  a  part  in  the  decision. 

Has  the  Orphan's  Court  power  to  direct  an  issue  for 
the  trial  of  facts?  This  application  to  direct  an  issue, 
is  of  the  first  impression.  The  Orphan's  Court  has 
existed  in  Pennsylvania,  nearly  one  hundred  and  for- 
ty years,  and  no  trace  can  be  found  of  the  exercise  of 
such  a  power  by  that  court. 

The  Court  of  Chancery  in  England,  has  exercised 
it  from  time  immemorial. — The  Supreme  Court  of 

(a)  1  Smith  40. 


32  JUDGMENT  AND  APPEAL.  [BOOK  i. 

Pennsylvania,  being  of  extensive  and  general  juris- 
diction, exercises  it,  in  some  cases,  by  virtue  of  their 
inherent  power.  Every  court  of  common  law,  hav- 
ing authority  to  issue  a  venire,  and  summon  a  jury,  can 
direct  an  issue  to  try  facts  in  cases  depending  before 
them.  This  is,  however,  a  court  of  limited  jurisdic- 
tion. It  has  no  power  but  what  it  derives  from  the 
acts  of  assembly,  or  is  sanctioned  by  usage  or  prac- 
tice. The  power  under  consideration  is  not  given  to 
it  by  any  act  of  assembly,  nor  has  it  ever  been  exer- 
cised. 

To  what  court  shall  such  an  issue  be  directed?  To 
the  court  of  common  picas  of  the  judicial  district? — 
That  court  is  not  a  court  of  general,  but  of  limited 
powers  in  civil  cases, — possessing  little  or  no  original 
jurisdiction. — To  the  District  Court  for  the  city  and 
county  of  Philadelphia? — That  is  a  separate  court, 
unconnected  with,  and  independent  of  the  Orphan's 
Court,  and  I  should  think  it  extremely  questionable 
whether  they  would  be  bound  to  obey  the  mandate 
of  any  other  court.  * 

The  Orphan's  Court  has  power,  and  has  always  ex- 
ercised it,  to  investigate  and  decide  facts  when  large 
concerns,  and  important  interests,  are  involved; — no 
inconvenience  has  resulted  from  it,  subject  as  it  is  to 
an  appeal  to  the  Supreme  Court. 

A  party,  in  the  Orphan's  Court,  who  wanted  delay, 
would  ask  for  an  issue.  If  granted  in  one  case,  it 
would  be  difficult  to  refuse  it  in  another,  and  a  scene 
of  vexation  and  procrastination  might  ensue,  which 
would  be  extremely  inconvenient,  troublesome,  and 
expensive.  No  adequate  benefit  would  be  produced 


8HAP.  i.j  JUGDMENT  AND  APPEAL.  33 

to  counterbalafice  the  mischiefs  apprehended.  The 
issue  when  found,  would  not  be  obligatory  on  the 
judges  of  the  Orphan's  Court,  who,  if  they  did  not  like 
the  finding,  might  utterly  disregard  it,  and  investigate 
and  judge  for  themselves,  as  if  it  had  not  been  sent  to 
a  jury.  On  appeal  to  the  Supreme  Court,  the  whole 
case,  law,  as  well  as  fact,  is  before  them,  de  novo.  The 
issue  when  decided  and  returned  might  therefore  be 

o 

useless,  as  well  as  troublesome,  dilatory,  and  expen- 
sive, and  the  business  of  the  Orphan's  Court  is  to  de- 
cide causes  summarily.  No  satisfactory  argument  can 
be  drawn  from  the  appointment  of  auditors:  this, 
though  not  directed  by  act  of  assembly,  is  supported 
by  long  and  almost  immemorial  usage.  But  it  is  said 
that  this  point  has  been  decided  by  the  Supreme 
Court  in  the  case  of  Yoke  v.  Barnet,  1  Binn.  Rep.  358. 
I  cannot  think  so — it  was  riot  the  point  of  the  case — 
and  what  is  said  by  the  Chief  Justice  is  a  mere  obiter 
dictum,  which  perhaps  escaped  him  hastily,  and  with- 
out his  considering  its  effect.  I  cannot  believe  that 
able  and  dignified  person  ever  meant  to  lay  it  down 
as  his  opinion,  that  the  Orphan's  Court  might  ascer- 
tain facts  to  be  tried  before  another  court.  The  court 
in  that  case  were  considering,  whether  a  debt  due  by 
judgment  from  Jacob  Yoke,  to  the  estate  of  his  father- 
in-law,  Henry  Barnet,  deceased,  could  be,  by  the  au- 
thority of  the  Orphan's  Court,  deducted  from  his 
wife's  distributive  share  of  that  estate.  The  Chief 
Justice  thus  expresses  himself, — "  there  are  cases 
in  which  the  Orphan's  Court  must  take  upon  them- 
selves to  decide  facts;"  and  shortly  afterwards,  "  if  ne- 
cessary, facts  may  be  ascertained  by  a  jury,  so  that 


34  JUDGMENT  AND  APPEAL.  [BOOK  i. 

there  seems  to  be  no  difficulty  in  surmounting  this 
part  of  the  objection'' — if  this  was  said  in  relation  to 
the  principal  case,  as  I  apprehend  it  was,  and  not  laid 
down  as  a  general  proposition,  it  is  perfectly  correct 
because  the  court  in  which  the  judgment  was  entered 
against  Yoke,  had  full  power  under  it  to  direct  an  is- 
sue to  determine  how  much  was  due.  That  he  did  not 
mean  to  lay  it  down  as  a  general  proposition  appears 
from  another  part  of  his  opinion  when  considering 
the  powers  of  the  courts  of  this  state,  to  insist  on  a 
provision  for  the  wife,  when  the  husband  applies  to 
get  possession  of  her  personal  property.  "  We  have, 
he  says,  no  trace  of  any  such  exercise  of  power  by 
our  courts,  it  must  be  taken  for  granted  then  that  they 
possess  no  such  powers."  The  same  forcible  obser- 
vation applies  with  equal  force  to  the  question  direct- 
ly under  consideration. 

Many  other  and  weighty  reasons  were  urged  at  the 
bar  against  the  exercise  of  such  a  power:  it  is  not, 
however,  necessary  to  go  more  into  detail.  I  have 
considered  the  subject  with  great  attention,  and  some 
anxiety,  on  account  of  the  particular  situation  in  which 
I  stand  towards  one  of  the  parties  litigant  in  this  case  5 — 
and  have  not  been  able  to  satisfy  my  mind  that  the 
Orphan's  Court  have  any  authority  to  direct  an  issue 
for  the  trial  of  disputed  facts.  I  confess  I  should  be 
afraid  to  make  an  innovation  in  its  practice,  the  con- 
sequences of  which  it  would  be  difficult  to  foresee;  and 
I  must  say,  in  the  spirit  of  the  earls  and  barons  of 
former  days. — "  Nolo  leges  Pennsylvania  mutari  que 
udtattf  fuerunt  et  approbate. 

With  great  deference  for  the  counsel  and  the  judge 
who  concurred  in  the  above  case,  the  powers  of  the 


CHAP,  i.]  JUDGMENT  AND  APPEAL.  35 

Orphan's  Court  to  determine  facts  by  an  issue,  was 
put  directly  before  the  Supreme  Court,  in  Yoke  v. 
Barnet  for  its  consideration.  That  power  was  denied  by 
the  appellants,  and  affirmed  by  the  appellees  and  the 
court.  And  the  Supreme  Court  has  more  than  once 
since",  recognized  the  power  of  the  Orphan's  Court  to 
direct  an  issue  on  disputed  facts.  In  the  case  of  Wal- 
lace v.  Eldei*  (a)  it  reversed  the  proceedings  of  the 
Common  Pleas  of  Dauphin  county  for  informality  in 
making  up  an  issue  directed  by  the  Orphan's  Court 
and  ordered  the  record  to  be  remitted,  that  the  issue 
might  be  tried  again.  The  Chief  Justice  who  deliv- 
ered the  opinion  of  the  court,  said,  "  these  issues  by 
order  of  the  Orphan's  Court,  are  no  new  things^  they 
are  often  directed  in  cases  of  disputed  wills,  but  the 
uniform  practice  is  to  institute  an  action  and  conduct 
it  in  strict  form."  And  though  the  court  erred  in  say- 
ing that  such  issues  "  are  often  directed  in  cases  of 
disputed  wills"  by  the  Orphan's  Court,  if  so  they 
meant  to  say,  yet  the  practice  of  the  Orphan  s  Court 
to  direct  issues,  is  evident  from  the  unquestioned  ex- 
ercise of  the  power  in  this  case.  In  Jldarris  case  in 
the  Orphan's  Court  of  Philadelphia,  (6)  in  which  a 
question  arose  with  regard  to  the  right  to  a  distribu- 
tive share  of  money  the  proceeds  of  real  estate  sold 
by  order  of  the  court,  it  refused  to  send  an  issue 
to  the  Common  Pleas,  alleging  its  want  of  power.  But 
on  appeal,  the  Supreme  Court  declared  that  the  Or- 
phan's Court  might  direct  an  issue,  and  that  the  Su- 
preme Court,  after  appeal  might  send  the  cause  to  a 
jury,  and  it  directed  an  issue  accordingly.  And  in 

(a)  S  Sergt.  &  R.  143.  (6)  1819. 


36  JUDGMENT  AND  APPEAL.  [BOOK  i. 

case  of  Finny  v.  Moore  (a)  an  issue  was  directed  by 
the  Orphan's  Court  to  ascertain  whether  the  former 
administrator  had  in  his  hands  any  assets  of  the  intes- 
tate, and  whether  he  was  liable  to  the  administrator 
de  bonis  non  for  any  property  which  may  have  come 
to  his  hands  as  administrator.  The  parties  entered  by 
agreement  an  amicable  action  for  that  purpose,  which 
was  tried,  and  the  jury  found  a  verdict  for  the  plaintiff, 
for  a  certain  sum  for  which  judgment  was  entered. 
The  Supreme  Court  determined  that  the  judgment 
was  erroneous  because  contrary  to  the  agreement  of 
the  parties.  The  matters  in  issue  were  to  be  found, 
and  a  certificate  transmitted  to  the  Orphan's  Court, 
who  would  then  proceed  in  the  business  before  them, 
which  had  been  suspended  until  the  result  of  the  trial 
in  the  Court  of  Common  Pleas. 

From  these  cases,  it  would  seem  that  the  Orphan's 
Court  have  a  discretionary  power  to  direct  an  issue,  that 
the  parties  pursuant  to  that  direction  may,  and  perhaps 
ought,  by  amicable  action,  to  try  the  case  in  a  court  of 
competent  jurisdiction,  on  which  no  judgment  should 
be  entered  by  such  court,  but  the  finding  of  the  jury 
should  be  returned  to  the  Orphan's  Court.  Whether 
the  Orphan's  Court  of  Philadelphia  county  could  im- 
pose a  duty  on  the  District  Court,  or  could  compel  it  to 
stay  its  judgment  on  the  finding  of  a  jury,  would  ad- 
mit of  much  doubt.  But  that  the  District  Court  would 
willingly  aid  the  Orphan's  Court,  can  admit  of  none. 
That  an  amicable  action  brought  by  the  parties  in 
the  District  Court  might  be  made  to  do  all  that  is  ne- 
cessary is  prgtty  clear.  And  if  the  Orphan's  Court 

(a)  8  Sergt.  &  R.  345. 


OHAP.  i.]  JUDGMENT  AND  APPEAL.  37 

of  the  city  and  county  of  Philadelphia  may  not  direct 
an  issue  to  the  Common  Pleas  or  to  the  District 
Court,  it  is  by  peculiar  circumstances  deprived  of  ad- 
vantages and  privileges  which  the  Orphan's  Court  in 
every  other  part  of  the  state  posseses.  We  say  of  ad- 
vantages and  privileges,  because  the  inquiry  into 
facts,  before  a  jury  has  many  ad  vantages,  "and  every 
judge,  of  sound  discretion,  feels  it  a  privilege  to  send 
a  very  doubtful  question  of  fact  to  be  determined  by 
twelve  men. 

From  the  Orphan's  Court,  an  appeal  lies  to  the 
Supreme  Court,  on  any  definitive  sentence  or  judg- 
ment, on  giving  the  usual  security,  (a)  But  an  appeal 
lies  upon  definitive  sentence  only.  (6) 

The  rule  for  taking  security  on  appeals  is,  that, 
the  appellant,  if  in  debt  to,  or  holding  money  of 
the  other  party,  should  give  security  for  the  payment 
of  debt  and  costs-,  in  other  cases,  for  costs  only,  (c) 
But  this  rule  does  not  extend  to  wards  against  whom, 
a  balance  appears  on  the  settlement  of  the  guardian's 
account,  (d) 

To  make  an  appeal,  a  copy  of  the  proceedings  un- 
der seal  is  obtained  from  the  clerk  of  the  Orphan's 
Court,  and  filed  with  the  prothonotary  of  the  Supreme 
Court,  with  an  order  from  counsel  to  enter  the  same 
of  record.  But  it  would  seem  from  the  case  of  Wal- 
ker's appeal  (c)  that  the  regular  method  of  bringing 
up  the  record  is  by  certiorari,  and  that  nothing  else 
will  stay  the  proceedings  below. 

•a)  Act.  of  1713.  Sm.  L.  85.  (c)  Richards'  Case,  6  Serg.  &  R. 

<b)  I  Sm.  L.  07.  M'Clay  v.  Hanna,         462. 
4Da11.  160.  (d}  Ibid. 

(«)2  Dall.  190. 


38  JUDGMENT  AND  APPEAL.  [BOOK  i. 

The  judgment  from  which  an  appeal  lies,  must  be 
given  by  the  court,  upon  investigation.  It  will  not  lie 
on  judgment  entered  pro  forma,  and  without  preju- 
dice, although  so  entered  by  agreement  of  the  parties, 
with  a  view  to  an  appeal,  (a)  If  there  are  errors  in 
an  account,  the  Supreme  Court  on  appeal  will  settle 
them,  like  the  Orphan's  Court,  and  not  set  aside  the 
whole  account  reported.  (6) 

The  proceedings  in  the  Orphans'  Court,  especially 
in  early  times,  were  conducted  with  much  informality, 
and  the  Supreme  Court  in  their  review  of  them,  will 
make  great  allowance.  After  a  length  of  time,  they 
will  presume,  that,  which  does  not  appear,  in  order  to 
effect  substantial  justice-,  but,  this  indulgence  cannot 
be  carried  so  far,  as  to  presume  against  that,  which 
does  appear,  (c) 

By  the  act  of  eleventh  March,  1809,  (rf)  the  recog- 
nizance on  appeal  is  to  be  taken  by  the  judges  of  the 
court  from  whose  decree  the  appeal  is  made. 

(a)  West's  App.  3  Berg.  &  R.  92.         (c)  Messinger  v.  Kintner,  4  Binn. 
(o)Guier  v.  Kelly.  2Binn.294.  103,105.     . 

(rf)  5  Sm.  L.  17. 


THE  LAW  OF  DECEDENTS 
BOOK  II. 

OF  WILLS  AND  PROBATES. 

CHAP.  I. 

WHAT  IS  A  WILL — HOW  MANY  KINDS WHAT  IS  A  CODI- 
CIL  WHO  MAY  MAKE  A  WILL — OF  WHAT  A  WILL  MAY 

BE  MADE — OF  THE  CONSTRUCTION  OF  WILLS — PROPER 
WORDS  TO   CREATE  THE  SEVERAL  SPECIES  OF  ESTATES 

BY  WILL — OF  REVOCATION. 

•  i 

SECTION    I. 

What  is  a  Willie. 

A  will  or  testament  is  the  legal  declaration  of  a 
person's  intentions,  which  he  directs  to  be  performed 
after  his  death,  (a) 

It  may  relate  either  to  real  or  personal  estate.  In 
the  former  case,  it  is  called  a  devise-,  which  is  the 
appointment  of  a  person  to  take,  in  the  nature  of 
a  conveyance,  fluctuating  until  the  death  of  the 
testator,  and  passing  only,  such  estate  as  he  held 
at  the  time  of  its  execution;  (6)  the  right  to  devise 
arising  from  the  statute  32  Hen.  VIII.  c.  1.  which  en- 
acts that  persons  having  lands  may  devise  the  same. 

(«)2  Bl.  Com.  499.  500.   *  (6)  2  Bl.  Com.  378.  Toll.  Ex.  1. 

Sed  vide  infra. 


40  WHAT  IS  A  WILL.  [BOOK  n. 

A  will  as  it  respects  personal  property  is  an  inde- 
finite disposition  of  all  the  testator  may  be  possessed 
of,  at  his  death,  inclusive  of  chattel  leases  whether 
they  were  his  at  the  time  of  making  his  will  or  not.  (a) 

A  will  to  pass  real  estate  must  be  in  writing;  and 
put  into  writing  during  the  testator's  life  time,  (b) 

Wills  of  personal  estate  are  either  written,  or  nun- 
cupative or  parole. 

1.  By  the  act  of  assembly,  1705,  (c)  all  wills  in 
writing,  whereby  any  lands,  tenements,  and  heredita- 
ments shall  be  devised,  being  proved  by  two  or  more 
credible  witnesses,  upon  their  solemn  affirmation,  or 
other  legal  proof  are  made  good  and  available  for 
granting  the  lands  thereby  devised,  and  the  goods 
and  chattels  thereby  bequeathed.  The  words  "  other 
legal  proof"  are  put  in  opposition  to  solemn  affirma- 
tion, in  order  to  admit  the  attestation  of  an  oath,  (d) 
If  a  will  be  proven  out  of  the  state  still  two  witnesses 
are  requisite-,  (e)  and  when  a  subscribing  witness  is 
out  of  the  jurisdiction  of  the  court,  his  handwriting 
may  be  proved  as  if  he  were  dead.  (/) 

But  though  two  witnesses  are  required  to  establish 
a  will,  of  real  or  personal  estate,  it  is  not  necessary 
that  the  proof  should  be  made  by  the  subscribing  wit- 
nesses, nor  that  it  should  be  subscribed  by  the  witness- 
es, nor  that  when  reduced  to  writing,  it  should  be  read 
by  the  testator ;  (g)  nor  is  it  necessary  that  all  the  will 

(a)  1  Pr.  Wm.  575.  Toll.  Ex.  2.  (/)  Eagles  et.  al.  v.   Bruington,  4 

(ft)  Rossiter  v.  Simmons,  6  Serg.  &  Yeates,  345. 

R.  452.  (g)  Hight  v.  Wilson,  t  Dall.  94 

(c)  1  Sm.  L.  33.  Havard  v.  Davis,  2  Binn.  144. — 

(d)  Lewis  v.  Maris,  1  Dall.  286.  Rossiter  v.   Simmons,  6  Serg1.  & 

(e)  Hyltpn  v.  Brown,  C.  C.  Mss.         R.  452. 
Rep.  W  barton's  Dig. 


CHAP,  i.]  WHAT  IS  A  WILL.  41 

should  be  proved  by  the  same  witnesses.  For  where 
instructions  for  drawing  the  will  were  given  to  A  by 
the  decedent,  in  the  presence  of  B  and  C,  and  A 
made  short  notes  of  them,  which  were  drawn  out  into 
form  and  in  part  read  to  the  decedent,  who  became 
insensible  before  the  reading  was  finished,  and  the 
evidence  of  A  was  confirmed  in  part  by  B,  in  part  by 
C,  it  was  ruled  that  the  notes  of  instruction  made  by 
A  were  sufficiently  proved  under  the  act  of  Assem- 
bly, (a)  In  this  case  it  was  said  by  the  court,  that 
though  a  will  of  land  must  be  proved  regularly  by 
two  witnesses,  yet  circumstances  may  supply  the 
want  of  one  witness,  where  they  go  directly  to  the 
immediate  act  of  disposition. 

Sealing  is  not  necessary,  (6)  nor  the  signature  of 
the  testator,  if  the  will  be  drawn  pursuant  to  his  in- 
structions, (c) 

From  these  decisions  it  follows,  that  a  will  in  the 
handwriting  of  the  testator  may  be  proved  by  any  two 
persons  who  know  the  handwriting;  that  a  will  re- 
duced to  writing,  in  the  lifetime  of  the  testator, 
without  seal  or  signature,  proved  by  two  witnesses, 
who  have  heard  the  testator  acknowledge  the  writ- 
ing as  his  will,  or  give  instructions  for  making  thereof, 
is  sufficient  to  pass  real  and  personal  estate.  But  it 
is  obviously  the  safer  way  to  cause  the  witnesses  to 
subscribe  the  will,  as  their  handwriting  may  be  proved 
in  case  of  their  death,  or  residence  out  of  the  jurisdic- 
tion of  the  court-,  and  the  testator  to  sign  it,  as  his 
intention  is  thereby  rendered  unequivocal. 

(o)Ejster».  Young,  3  Yeates,  51 J.  (c)  Walmslej's  Less  v.  Read.  3 
(fc)  Hight  i>.  Wilson,  1  Dall.  94.  1  Yeates,  87. 


42  WHAT  IS  A  WILL.  [BOOK  n. 

But  such  writing  must  appear  clearly  to  be  of  a 
testamentary  character  or  it  will  not  operate  as  a 
will.  For  where  one  inclosed  securities  for  debts  in 
an  envelop  and  indorsed  on  it,  "  for  R  G-,"  and  other 
securities  in  another  envelop  endorsed  for  "the 
heirs  of  G  Pj"  and  the  securities  so  enveloped  were 
found  in  the  possession  of  the  deceased,  having  never 
been  out  of  her  possession;  and  no  communication 
having  been  made  to  any  one  on  the  subject,  it  was 
held  that  the  indorsements  were  not  testamentary 
and  could  not  be  admitted  to  probate  as  a  will,  (a) 
So  where  A,  living  in  Philadelphia,  wrote  a  letter  to 
a  sister  in  Germany,  desiring  her  to  send  over  her 
son  B,  and  "  if  he  prove  obedient  and  followed  all  his 
directions,  he  should  be  the  heir  of  his  whole  estate,' 
this  is  not  a  will  of  land  in  favour  of  B. 

So  also  where  A  executed  an  instrument  under 
seal,  declaring  that  in  consideration  of  the  care  and 
attention  shown  him  by  B,  he  acknowledged  himself 
to  be  indebted  to  her,  and  that  his  executors  or  ad- 
ministrators should  pay  her  a  certain  sum  in  one  year, 
after  his  decease,  and  he  delivered  this  instrument  to 
B,  .it  was  ruled  to  be  an  obligation,  and  not  a  testa- 
ment. (6) 

So  where  A  being  under  great  obligation  to  B  de- 
posited a  large  sum  of  money  in  his  hands,  and  fre- 
quently mentioned  his  intention  of  benefiting  B  or  his 
family  at  his  death j  and  at  his  death  left  a  paper  in 
his  pocket  book,  with  his  signature  in  these  words,  "  I 
acknowledge  to  be  indebted  to  B  in  the  sum  of 

(a')  Plumstead's  Appeal,  4  Serg.  &    (6)  Shields  et  Al.  v.  Irwin  et  Al.  3 
R.  545.  Yeates,  389. 


CHAP,  i.]  WHAT  IS  A  WILL.  43 

S8000  value  received  of  him,  Philadelphia,  June  15, 
1805."  This  paper  was  held  to  be  evidence  of  a  debt 
due  from  A  to  B,  but  not  a  testament,  (a) 

Real  estate  being  fixed  and  local  in  its  nature,  must 
be  transferred  according  to  the  law  of  the  country  in 
which  it  lies.  Consequently  a  devise  of  lands  in 
Pennsylvania,  made  by  one  resident  abroad,  must  be 
proved  as  if  made  here.  But  a  will  of  personal  pro- 
perty which  is  ambulatory  in  its  nature,  and  attached 
to  the  person  of  the  owner,  must  be  executed  accord- 
ing to  the  laws  of  the  place,  of  which  the  testator  was 
a  domiciliated  inhabitant,  at  the  time  of  his  death,  or 
it  will  not  pass  personal  property  in  a  foreign  country 
although  executed  according  to  the  law  of  that  coun- 
try, (b)  This  doctrine  is  drawn  from  the  principle, 
that  the  succession  to  the  personal  estate  of  an  intes- 
tate is  to  be  regulated  according  to  the  law  of  the 
country  of  which  he  was  a  domiciliated  inhabitant  at 
the  time  of  his  death,  (c) 

II.  The  unqualified  allowance  of  nuncupative  wills 
having  been  productive  of  the  greatest  frauds,  it  be- 
came necessary  to  subject  them  to  very  strict  regula- 
tion. Therefore  by  the  act  of  1705,  Sects.  3,  4,  5,  (d) 
founded  on  the  statute  of  frauds,  29  Car.  II.  the  fol- 
lowing particulars  are  necessary  to  establish  a  nun- 
cupative will,  where  the  property  bequeathed  ex- 
ceeds in  value  thirty  pounds. 

1 .  The  will  must  be  proven  by  two  or  more  wit- 
nesses, who  were  present  at  the  making  thereof,  and 

(a)  Toner  v.  Taggert,  5  Binn.  549.  (c)  1  Venn.  397.  Dessabats  v.  Ber- 

(6)  Bruce  v.  Bruce,  2  Bos.  &  Pul.  quier,  1  Binn.  331. 

231.  Sommerville  v.  Ld.  Somer-  (d)  I  Sm.  L.  34. 

ville,  5  Ves.  Jr.  750. 


44  WHAT  IS  A  WILL.  [BOOK  n. 

were  bidden  by  the  testator  at  the  time  of  pronounc- 
ing the  same,  to  bear  witness,  that,  that  was  his  will, 
or  words  to  that  effect. 

2.  It  must  be  made  in  the  testator's  last  sickness, 
in  his  dwelling  house,  or  where  he  hath  been  resident 
ten  days  or  more  before  the  making  of  such  will,  un- 
less he  were  surprised  or  taken  sick  from  his  home, 
and  died  before  he  returned  thereto. 

3.  It  must  be  proved  within  six  months  from  the 
making,  unless  the  substance  of  the  will  have  been 
committed  to  writing  within  six  days  after  the  speak- 
ing of  the  testamentary  words. 

4.  Fourteen  days  after  the  death  of  the  testator 
must  fully  expire,  before  probate  is  made  of  the  will; 
and 

5.  Process  must  be  issued  to  call  in  the  widow,  and 
next  of  kin  to  the  deceased,  that  she  or  they  may 
contest  the  will. 

A  codicil  is  a  supplement  to  a  will,  annexed  to  it  by 
the  testator,  for  the  purpose  of  explaining,  altering, 
adding  to,  or  subtracting  from,  his  former  disposi- 
tions, (a) 

A  codicil  may  be  annexed  to  a  will  either  actually, 
or  constructively.  It  may  be  written  on  a  paper  con- 
taining the  will,  or  on  a  different  one;  it  may  be  affix- 
ed to  or  folded  up  with  the  will,  or  detached  or 
deposited  in  a  different  place.  (6)  A  written  codicil 
must  be  executed  as  a  will.  To  a  will  of  personal 
estate  it  may  be  either  written  or  nuncupative;  if  the 
latter  it  should  merely  supply  an  omission  in  the  will. 

(a)  Toll.  Ex.  5.  2  Bl.  Com.  500.          (6)  Toller,  Ex.  5. 


CHAP,  i.]  WHO  MAY  MARE  A  WILL.  45 

Thus  the  testator  may  dispose  of  part  of  his  effects  by 
writing,  and  the  residue  by  a  nuncupative  codicil,  (a) 

f 

SECTION  II. 

Who  may  make  a  will. 

Every  person  may  make  a  will  who  is  not  disquali- 
fied, I.  By  the  want  of  legal  discretion.  II.  By  the 
want  of  liberty  or  free  will.  III.  By  divorce  and  co- 
habitation with  the  adulterer. 

1.  The  disabilities  for  want  of  legal  discretion  are, 
1.  Nonage;  2.  Defective  understanding;  and  3.  Cover- 
ture. 

1.  No  person  under  the  age  of  twenty-one  years 
can  dispose  of  lands  by  will-,  but  the  age  of  legal  dis- 
cretion for  making  wills  of  personal  estate  is  fixed  by 
the  ecclesiastical  law,  whence  we  have  borrowed  it, 
at  fourteen  in  males,  and  twelve  in  females,  (6) 

2.  Persons  of  defective  understanding,  incompetent 
to  make  a  will,  are  idiots,  madmen,  those  born  deaf 
and  blind,  and  those  whose  intellects  are  destroyed  by 
age,  distemper,  or  drunkenness,  (c)    If  a  testator  be 
subject  to  insanity,  yet  if  his  will  be  made  in  a  lucid 
interval,  it  is  legal,  and  a  fortiori  a  will  made  by  one 
habitually  of  a  sound  mind  will  not  be  affected  by  his 
subsequent  insanity,  (d) 

The  presumption  of  the  law  is  always  in  favour  of 
mental  capacity,  and  the  party  alledging  mental  in- 
capacity to  invalidate  a  will  or  deed,  must  prove  it.  (e) 
But  if  the  testator  show  a  general  derangement  or 

(o)Com.  Dig.  Devise, Toller,  Ex.  6.  (c)  Toller,  Ex.  9. 2  Black.  Com.  497. 

(6)  Off.  of  Ex.  213.  214.  Toller  Ex.  (</)  Ibid.  9. 

8.  Godolph,  276.  Har.  Co.  Litt.  (e)  Less,  of  Hoge  v.  Fisher,  Peters 

89.  b.  n.  6.  Rep.  163. 


46  WHO  MAY  MAKE  A  WILL.  [BO«K  u. 

imbecility  of  mind  at  any  time  anterior  to  the  execu- 
tion of  the  will,  the  party  supporting  the  will,  must 
show  mental  capacity  in  him  at  the  time  it  was  made, 
and  that  he  was  then,  of  sound  and  disposing  mind 
and  memory,  (a) 

Drunkenness  of  itself  merely,  is  said  to  be  no  legal 
exception  to  the  validity  of  a  will.  In  other  words, 
if  this  vice  do  not  absolutely  disable  the  party  from 
disposing  of  his  estate  with  intelligence  and  reason, 
his  acts  are  not  void.  (6)  But  where  by  habitual  in- 
toxication, a  man's  senses  are  besotted,  and  his  un- 
derstanding gone,  he  can  make  no  will,  (c) 

A  will  made  by  the  persuasion  and  through  the  in- 
fluence of  another  is  not  for  that  reason  void-,  for  a 
man  has  a  right  by  fair  argument  or  persuasion  to 
induce  another  to  make  a  will,  and  even  to  make  it 
in  his  own  favour,  (d)  Therefore  on  an  issue  to  try  the 
validity  of  a  will,  evidence  is  not  admissible  that  one 
of  the  devisees  had  intimated  that  he  had  procured 
the  will  to  be  made,  that  it  had  been  read  to  him,  and 
that  he  had  given  the  reasons  why  his  brothers  and 
sisters  had  a  small  portion  bequeathed  to  them,  (e) 

3.  It  is  a  general  rule  that  a  married  woman  can- 
not devise  lands,  or  bequeath  personal  estate.  This 
disqualification  depends  on  the  express  words  of  the 
statute  34  and  35  Henry  VIII,  which  it  seems  is  in 
force  here,  (/)  though  it  is  not  reported  by  the  judges, 
nor  noticed  by  Roberts  in  his  digest  of  the  English 

(a)  Less,  of  Hoge  ».  Fisher  et  Al.  &  R.  267. 

Peter's  Rep.  163.  (e)  Miller  et.  AI.  v.  Miller,  3  Serg. 

(6)  Starretw.  Douglass,  2  Yeates.  R.  &  R.  267. 

48.  (/)  Barnes  less.  v.  Irwin,  2  Dall. 

(c)  Ib.  201.  2  Yeates,  380. 

(d)  Miller  et.  Al.  v.  Miller,  3  Serg, 


.  i.]  WHO  MAY  MAKE  A  WILL.  47 

statutes  in  force  in  Pennsylvania;  and  upon  the  sub- 
jection of  the  wife  to  the  husband,  which  operates 
alike,  to  prevent  her  from  making  a  will  of  real  and 
personal  estate. 

But  this  rule  is  subject  to  the  following  exceptions. 

1.  Where  the  husband  before  marriage  covenants 
with  her  or  with  her  friends,  that  she  may  dispose  of 
her  estate  by  will.     Under  this  covenant  the  will  of 
the  wife  is  good,  though  the  legal  estate  be  not  vest- 
ed in  trustees,  (a)    And  this  power  of  the  wife  to  be- 
queath, exists  where  the  husband  stipulates,  that  she 
shall  enjoy  personal  property  to  her  sole  and  sepa- 
rate use;  (6)  and  where  she  has  such  power  over  the 
principal,  it  extends  to  its  produce  and  accretions,  (c) 

2.  Where  personal  property  is  given  in  trust  for  the 
sole  and  separate  use  of  the  wife,  (d)    3.  Where  the 
wife  holds  property  in  auter  droit,  in  a  representative 
capacity,  for  it  never  can  be  the  property  of  the  hus- 
band, (e) 

II.  If  a  party  make  his  testament  under  the  influence 
of  personal  restraint  or  duress,  it  will  be  void;  for  the 
testament  has  effect  only,  because  it  is  the  will  of  the 
testator.  (/) 

III.  In  order  to  prevent  the  abuse  of  the  power 
which  an  adulterer  may  acquire,  over  the  victim  of 
his  seduction,  it  is  provided  by  the  8th  section  of  the 
act  of  nineteenth  September,  1785,  that  "  Where  any 
woman  shall  be  divorced  as  aforesaid,  and  shall  after- 

(o)  Barnes  less.  v.    Irwin,  2  Dall.  355. 

201.  1  Yeates,  221.  2  Ves.  191.  (d)  3  Bro.  fh.  Rep.  8.  1  Ves.  J. 

(b)  Toll.  11.  12  Mass.  R.  525.    Os-  46.   1  Phill.  Rep.  352. 

good  v.  Breed.  Fettiplare  v.  Gor-  (e)  Off.  Ex.  87.  Godolf.  1.    Toller, 

ges,  1  Ves.  Jr.  46.  11. 

(c)2  Vern.  535.     Prec.  in  Ch.  44.  (/)  Toller,  Ex.  9. 


48  WHO  MAY  MAKE  A  WILL.  [BOOK  n. 

ward  openly  cohabit  at  bed  and  board  with  the  person 
named  in  the  petition  or  libel,  and  proved  to  be  the 
partaker  in  her  crime,  she  shall  not,  and  she  is  here- 
by declared  to  be  incapable,  to  alienate,  directly  or 
indirectly,  any  of  her  lands,  tenements  or  heredita- 
ments; but  that  all  deeds,  mils,  appointments  and  con- 
veyances thereof  shall  be  absolutely  void  and  of  none 
effect,  and  after  her  death  the  same  shall  descend  and 
be  subject  to  distribution  in  like  manner  as  if  she  had 
died  seized  thereof  intestate,  (a) 

Attainder  of  treason,  or  felony,  without  benefit  of 
clergy,  suicide  and  alienage  formerly  avoided  a  will. 
But  by  the  constitution  of  Pennsylvania,  Art.  9,  Sec. 
19,  it  is  provided,  "  that  no  attainder  shall  work  cor- 
ruption of  blood,  nor,  except  during  the  life  of  the 
offender,  forfeiture  of  estate  to  the  Commonwealth: 
that  the  estates  of  those  who  destroy  themselves  shall 
descend  or  vest  as  in  case  of  natural  death." 

By  the  act  of  twenty-fourth  March,  1818,  aliens 
(not  enemies)  may  purchase  and  hold  lands,  &c.  not 
exceeding  5000  acres,  to  themselves  their  heirs  and 
assigns,  as  fully  to  all  intents  and  purposes  as  any 
natural  born  citizen  may  do.  Devises  by  aliens  within 
this  limitation  are  consequently  legal.  (6) 

By  the  same  act  all  purchases  made  by  emigrants, 
resident  in  the  commonwealth  previously  to  their  de- 
claring their  intention  to  become  citizens  of  the  United 
States;  and  who  have  since  been  naturalized  accord- 
ing to  the  laws  of  the  United  States  are  .valid;  and 
sales  heretofore  made  by  alien  purchasers  are  good; 

(a}  2  Sm.  L.  346.  (J)  7  Read's  L.  P.  133. 


OHAP.  i,]    OF  WHAT  A  WILL  MAY  BE  MADE.  49 

and  lands  held  or  purchased  by  aliens  (before  the  pas- 
sage of  the  act)  are  confirmed  to  their  heirs,  (a) 

An  alien  friend  may  bequeath  personal  estate  with- 
out limitation,  and  so  also  may  an  alien  enemy,  if  he 
be  resident  by  licence  from  the  government,  express 
or  implied.  (6)  This  licence  will  be  implied  if  the 
alien  come  into  the  country  before  war,  and  continue 
during  war,  not  being  ordered  from  the  country  by 
the  government,  (c) 

SECTION  in. 
Of  what  a  will  may  be  made. 

Every  species  of  property  may  pass  by  will,  ex- 
cept estates  tail;  these,  if  not  barred  by  deed,  or  fine, 
cannot  be  devised. 

As  the  formalities  in  the  execution  of  wills  of  real 
and  personal  estate  are  the  same,  it  is  unnecessary  to 
distinguish  the  property  classed  under  these  species, 
so  far  as  relates  to  the  operation  of  written  wills  made 
within  the  state.  But  such  distinction  may  be  import- 
ant to  a  non-resident  desirous  to  dispose  of  property 
here.  For  a  will  made  pursuant  to  the  law  of  the 
domicil  of  such  resident  may  be  good  as  to  personal 
and  void  as  to  real  estate. 

Real  estates  devisable  are,  estates  in  fee,  whether 
held  in  severalty,  in  coparcenery,  or  in  common-,  in 
possession,  in  reversion  or  remainder;  and  estates  held 
for  the  life  of  another,  (d)  Contrary  to  the  English 
law  the  testator  may  devise  lands  of  which  he  has  been 

(a)  7  Read's  L.  P.  133.  (c)  Clark  v.  Mercy,  10  John  Rep. 

(6)  Toll,  12.  1  Bl.  Com,  372.  Wil-  69. 

cox  v.  Henry,  J  Dall.  69.  Russel  (d)  Act  1705.  1  Sm.  L.  33.  Toller. 

v.  Skipworth,  6  Binn.  241.  Ex.  7. 


50  CONSTRUCTION  OF  WILLS.  [BOOK  n. 

disseized.  The  tenures  attached  to  the  feudal  system 
never  having  prevailed  in  Pennsylvania,  no  regard  is 
paid  to  that  principle  which  requires  seizin  in  order 
to  authorize  the  alienation  of  land  by  deed  or  will,  (a) 
Personal  estate  devisable,  embraces  leases  for 
years,  whatever  may  be  the  length  of  the  term,  and 
all  property  which  does  not  partake  of  the  realty.  But 
the  testator  can  not  create  a  term  for  years  without 
observing  all  the  forms  appertaining  to  a  devise  of 
lands-,  because  the  interest  in  right  of  which  the  tes- 
tator creates  the  term  is  real  property,  and  the  crea- 
tion of  the  term  is  a  partial  devise  of  it.  (6) 

SECTION  IV. 

Of  the  construction  of  wills. 

The  intention  of  the  testator  governs  in  the  con- 
struction of  a  will  in  all  cases  except  where  the  law 
overrules  the  intention;  and  this  is  reduceable  to  four 
instances.  1.  Where  the  devise  would  make  a  per- 
petuity. 2.  Where  it  would  put  the  freehold  in  abey- 
ance. 3.  Where  chattels  are  limited  as  inheritances; 
and  4.  Where  a  fee  is  limited  on  a  fee.  (c) 

A  perpetuity  is  an  estate  unalienable,  though  all 
mankind  join  in  the  conveyance,  (d)  Abeyance  is 
where  the  inheritance  is  in  no  one,  and  the  person  in 
whom  it  shall  vest  is  uncertain,  (e)  Personal  chattels 
can  be  limited,  only  to  the  life  of  a  person  in  being 
and  twenty-one  years  afterwards,  the  person  who 

(a)  Humes  v.  McFarland,  4  Serg.  (c)  Huston  v.  Ruston,  2  Dall.  244. 

&  R.  435.  Stoever   v.  Whitman,  Tiudlay  v.  Riddle,  3  Binn.  149. 

6  Binn.  416.  Co.  Litt.  379.  a. 

(6)  Harg.  Co.  Litt.    114,  b.  n.   3.  (d)  1  Salk.  229. 

Toll,  6.  (e)  2B1.  Com.  107. 


CHAP,  i.]  CONSTRUCTION  OF  WILLS.  51 

takes  in  remainder  will  have  the  absolute  proper- 
ty, (a)  But  where  an  estate  tail  in  such  chattels  is 
given  to  the  first  or  any  subsequent  possessor,  it  vests 
in  him  the  total  property  and  no  remainder  over  shall 
be  permitted,  (b) 

The  intention  of  the  testator  must  be  collected  from 
the  whole  will;  (c)  from  the  words  taken  altogeth- 
er, (d)  and  every  word  and  sentence  must  be  consid- 
ered in  forming  a  judicial  decision  upon  it-,  (e)  and  pa- 
role evidence  is  not  admissible  to  increase  or  abridge 
the  effect  of  the  words  in  a  written  will;  (/)  nor  in 
construing  the  will,  will  the  court  have  any  regard 
to  the  instructions  for  preparing  it  (g).  But  parole 
evidence  may  be  given  to  explain  a  latent  ambiguity; 
as  to  ascertain  a  person,  to  whom  a  devise  or  bequest 
is  made,  or  to  rebut  a  resulting  trust,  or  in  case  of 
fraud  and  mistake  to  annul  the  will,  (h} 

By  a  will  a  fee  may  be  conveyed  without  words  of 
inheritance,  an  estate  tail  without  words  of  procrea- 
tion, and  an  estate  may  pass,  by  mere  implication 
without  express  words  to  direct  its  course:  ( i )  as 
where  a  man  devises  lands  to  his  heirs  at  law  after 
the  death  of  his  wife.  Here  though  no  estate  is  giv- 
en to  the  wife  in  express  terms  she  takes  a  life  estate 
by  implication. 

The  following  rules  of  construction,  depend  upon 
the  great  rule  that  the  intent  of  the  testator,  is  to  be 

(a)  Fearne,  2  Bl.  Com.  398.  432. 

(6  )  Ibid.  1  Pr.  Wms.   290.  (g)  2  Vezey  and  Beames  318.  Id- 

(c)3Burr.  1541,1581,  1662.  Rus-  "  din»s   v  Iddings     7   Sergt.   and 

tonv.  Ruston,  2  Dall.  244  R.  111.  1  John  Ch.  Rep.  #M. 

(d)  Lynn  v  Downs,  1  Yeates  518.  (A)  7  Sergt.  and  R.   111.5  Rep,  68. 

(e)  Turbett  v  Turbett,  3  Yeatesl87.  Slecde  v.  Berrier,  I  Freom.  292. 
(/)  Torbett  v.  Twining,  I  Yeates  f  i )  I  Vent.  376.  Cro.  Jac.  75. 


52  CONSTRUCTION  OF  W  LLS.  [BOOK  n. 

taken  as  the  guide  for  the  exposition  of  doubtful  cir- 
cumstances:    Where  the  words  of  a  will  have  a  plain 
sense,  and  no  doubt  is  in  any  matter  within  or  with- 
out the  words,  touching  the  matter  of  the  devise, 
there  the  words  of  the  will  shall  always  be  taken  to 
be  the  intent  of  the  devisor,  and  his  intent  to  be  what 
the   words  say.  (a)       If  there   be  inconsistent  and 
contradictory  words  in  a  will,  part  may  be  rejected 
to  make  it  sense.     And  words  may  be  supplied  to 
render  a  sentence  complete  and  intelligible  in  aid  of 
the  apparent  intent  to  be  collected  from  the  whole 
context.  (6)    And  where  two  estates  were  mis-descri- 
bed by  their  contrary  appellations,  the  error  was  re- 
medied by  a  construction  according  to  the  intent  ap- 
pearing on  the  face  of  the  will,  (c) 

Such  sense  shall  be  made  of  a  devise,  that  it  may 
be  for  the  profit  of  the  devisee,  and  not  to  his 
prejudice.  General  and  doubtful  words  in  a  will  shall 
not  alter  an  express  devise  before,  nor  carry  any 
thing  contrary  to  the  apparent  intent.  The  clauses 
and  sentences  of  a  will,  shall  be  severally  transposed 
to  serve  the  meaning,  (d) 

One  part  of  a  will  shall  be  expounded  by  another: 
as  where  a  man  leaves  an  estate  to  another  and  his 
heirs,  and  afterwards  mentions  to  have  given  him  an 
estate  tail,  heirs  shall  be  taken  to  mean  heirs  of  the 
body,  and  the  devisee  shall  take  only  an  estate  tail,  (e) 
In  the  case  of  devise  to  relations  generally  the  sta- 
tute of  distributions  affords  the  rule  to  determine  to 
whom,  and  in  what  proportions  the  devise  shall  be 

(a)  2  And.  17.  (d)  Sheph.  abr.  voc.  Testament. 

(6)  6  East  Rep.  486.          (e)  Bramfield  v.  Popham,  2  Freem.  267.  Burr. 

(c)  3  East.  Kept.  149.  912,  924,1110,  1113,  1  Vez.   142. 


CHAP,  ij  CONSTRUCTION  OF  WILLS.  53 

divided,  and  the  rule  will  be  the  same  though  the 
devise  be  to  poor  relations,  (a)  But  if  the  bequest 
be  to  testator's  descendants,  as  these  may  be  readily 
ascertained,  there  is  no  necessity  of  resorting  to  the 
statute  of  distributions,  and  the  division  will  be  per 
capita  to  each  arid  in  such  shares  as  the  terms  of  the 
bequest  may  indicate.  (6) 

A  devise  is  void,  when  made  to  the  same  per- 
son who  would  take  by  descent-,  unless  the  estate 
devised  be  different  from  that,  which  would  have  de- 
scended; because  the  title  by  descent,  is  the  better  ti- 
tle, (c)  Devises  are  also  void  and  rejected  where 
the  words  of  the  will  are  so  general  and  uncertain 
that  no  meaning  can  be  collected  from  them,  (d) 

SECTION  v. 

Of  the  proper  words  to  create  the  several  species  of  es- 
tates by  will. 

Few  difficulties  arise  in  the  construction  of  wills  of 
personal  chattels;  but  ignorance  or  carelessness  on  the 
part  of  testators,  or  of  those  employed  by  them,  create 
many  vexatious  questions  relative  to  testamentary  dis- 
positions of  real  estate.  These  may  be  avoided  by 
men  of  ordinary  learning  and  understanding,  by  at- 
tention to  the  following  remarks,  where  the  devise 
has  that  simplicity  of  character  and  design  which  ap- 
pertains to  the  great  mass  of  wills  in  our  state.  But 
where  the  devise  is  of  a  complex  nature  and  many  es- 
tates are  to  be  carved  out  of  the  inheritance,  involving 
the  intricacy  of  executory  devises,  no  man  unless 

(a)  Bro.  Ch.  R.  31,  Ambler  507.  (c)  Burns  Eel.  L- 

(6)  3  Bro.  Ch.  Rep.  367.  Arab.  397,  (rf)  Ibid. 

.  Rep.  77,  179.  Tab.  21. 


54  CONSTRUCTION  OF  WILLS.  [BOOK  n. 

learned  in  this  abstruse  subject  should  venture  to 
make  his  own  will.  The  testator  can  find  security 
for  the  fulfilment  of  his  intentions,  only  in  the  hard 
earned  wisdom  of  the  erudite  lawyer. 

The  estates  in  lands  in  Pennsylvania  which  may 
be  created  by  will  are  four.  1.  Estates  in  fee  simple. 
2.  Estates  in  fee  tail.  3.  Estates  for  life,  and  4.  Es- 
tates for  years. 

1.  It  is  an  established  principle  that  the  inheritance 
shall  not  be  taken  from  the  heir  unless  the  devise  con- 
tains either  proper  words  to  create  a  fee  simple,  or 
words  which  have  been  construed  tantamount  there- 
to, (a)  And  this  principle  applies  with  more  force 
here  than  in  England,  because  the  law  considers  all 
the  children  taken  together  as  the  heir,  (b) 

The  words  proper  to  devise  a  fee  simple  are,  "  I 
give  and  devise  to  A,  his  heirs  and  assigns  forever, 
all,  &c.  (describing  the  property  with  certainty.)  A 
devise  to  A  in  fee  simple  would  be  as  unequivocal 
and  effectual,  (c)  But  a  devise  to  A  and  his  heirs 
might  be  considered  doubtful,  especially  if  any  estate 
were  limited  over,  (d)  Words  which  only  describe  the 
object  devised,  give  no  more  than  an  estate  for  life,  but 
words  which  comprehend  the  quantum  of  the  estate 
pass  a  fee.  (e) 

The  following  phrases  have  been  determined  to 
carry  a  fee.  "  To  A  forever."  "  To  A  and  his  as- 
signs. "  To  A  to  give  and  sell  or  do  therewith  as  he 
pleases;  (/)  "  All  my  estate,"  or  "  all  my  real  estate," 

(a)  French  v.  M'llhennny,  2  Binn.  20.  (e)  Morrison  et  al.  v.    Semple, 

(6)  Ibid.  6  Binn.  97. 

(c)  Burn.  EC.  L.  104.  (/)  Doughty  et  al.  y.  Brorone, 

(d)Cas.  Talbotl.  4  Yeates,  179. 


CHAP,  i.]  CONSTUCTION  OF  WILLS.  5& 

if  the  devisor  had  a  fee,  unless  restrained  by  other 
words  in  a  will,  (a)  "  As  to  all  my  worldly  estate''  in 
the  beginning  of  a  will,  unconnected  with  any  partipu- 
lar  devise,  shew  an  intention  to  dispose  of  the  whole 
estate,  but  will  not  carry  an  estate  that  is  clearly  omit- 
ted, but  if  it  be  dubious  whether  omitted  or  not,  it 
will  help  the  interpretation.  (6)  And  they  will  en- 
large an  estate  to  a  fee,  where  the  words  would  in  the 
particular  devise,  otherwise  create  an  estate  for  life 
only,  (c)  "All  my  real  and  personal  property"  passes 
a  fee  in  lands,  (d)  The  word  "  heir"  may  be  a  collec- 
tive term  and  operate  in  the  same  manner  as  "  heirs" 
in  the  plural  number,  (e)  A  devise  in  1745,  of  land 
held  by  warrant.  "  I  give  to  my  son  James  the  im- 
provement whereon  I  live,"  without  words  of  inheri- 
tance vested  a  fee  in  the  devisee,  (f) 

Where  the  payment  of  a  sum  in  gross  is  annexed 
to  a  devise  of  land  in  general  terms,  without  express- 
ing any  estate,  the  devisee  takes  a  fee.  But  where  the 
estate  of  the  devisee  is  plainly  indicated,  a  direction  to 
make  such  payment  has  no  effect  to  alter  the  estate. 

(f) 

2.  Estates  tail  are  rare  in  Pennsylvania.  The  ge- 
nius of  our  constitution  is  against  perpetuating  prop- 
erty in  any  particular  line:  and  as  the  tenant  in  tail 
may  destroy  the  entail  by  a  simple  deed  of  convey- 
ance, (h)  most  attempts  to  fetter  estates  in  this  way 

(a)  2  Binn.  20.  Wilson  v.  Wilson.  (e)  Hall  v.    Vandergrift,  3  Binn. 

(6)  Busby  v.  Busby,  1  Dall.  226.  374. 

(c)  Less,  of  Caldwell  et  al.  v.  Fer-  (/)  Green  v.  Creamer,  3  Dall.  477. 
guson,  1  Yeates,  250, 380.  French  (gj  Buckart  v.  Bucher,   2  Binn. 
v.  M'Ilhenny,2  Binn.  13.    C.  J.  264. 

Tilghman  dissenting.  (h)  3  Sm.  L.  338. 

(d)  Morrison  v.  Semple,  6  Binn.  94. 


56  CONSTRUCTION  OF  WILLS.  [BOOK  n. 

must  prove  abortive.     But  as  estates  tail  may  exist 
we  shall  give  here  the  proper  words  to  create  them. 

The  word  body,  or  some  other  word  of  procreation, 
is  necessary  to  make  a  fee  tail,  and  to  ascertain  to  what 
heirs  in  particular  the  fee  is  limited,  (a)  A  devise  to 
"  A  and  the  heirs  of  his  body,  begotten"  creates  an  es- 
tate tail  general,  (fe)  If  it  be  intended  to  confine  the 
descent,  to  the  heirs  male  of  the  devisee,  the  follow- 
ing words  should  be  used  "  to  A  and  the  Jieirs  male 
of  his  body  begotten,''  if  to  his  heirs  female,  then  the 
phrase  "  to  the.  heirs  female  of  his  body  begotten"  is  to 
be  substituted. 

If  an  estate  tail  special,  by  which  the  gift  is  confin- 
ed, to  the  issue,  of  a  designated  marriage,  is  intended 
then  the  wife  from  whom  the  issue  is  to  proceed, 
should  be  properly  described.  This  may  be  in  either 
of  the  following  modes.  1 .  Where  an  estate  is  given 
"  to  a  man  and  his  wife  Mary  and  to  the  heirs  of  their 
two  bodies  begotten."  (c)  Here  no  issue  but  that  en- 
gendered between  them  can  inherit.  And  the  hus- 

^ 

band  and  wife  have  an  estate  tail  special.  2.  Where 
tenements  are  given  "  to  a  man  and  to  his  wife  Mary, 
and  to  the  heirs  of  the  husband  on  the  body  of  the  wife 
begotten."  In  this  case  the  husband  has  an  estate  tail 
special,  and  the  wife  an  estate  for  life  only.(d)  3.  Where 
the  gift  is  "  to  the  husband  and  to  his  wife,  and  to  the 
heirs  of  the  body  of  the  wife  by  the  husband  begotten." 
The  wife  in  this  case  has  an  estate  in  special  tail  and 
the  husband  but  for  term  of  life,  (e)  Estates  in  spe- 
cial tail  like  those  in  general  tail  may  be  male  or  fe- 

(a)2Bl.  Com.  114.  (d)  Ibid  27. 

(6)  Litt.  $  14,  15.  (c)  Litt.  $  28. 

(c)Litt.  $16- 


OHAP.  i.]  CONSTUCTION  OF  WILLS.  57 

male,  and  are  so  made  by  placing  the  word  male,  or 
the  word  female  immediately  after  the  word  heirs; 
as,  if  an  estate  be  given  "  to  a  man  and  the  heirs  fe- 
male of  his  body,  on  his  present  wife  begotten."  (a) 

But  consistently  with  the  indulgence  of  the  law  to- 
wards wills,  made  when  it  is  supposed  the  testator 
has  not  the  benefit  of  legal  counsel,  these  technical 
words  are  not  insisted  upon  in  devises.  Thus  it  is 
not  necessary  that  the  body  from  which  the  issue  is 
to  come  should  be  mentioned  in  express  terms;  it  is 
sufficient  if  the  intention  of  the  testator  appears  with 
reasonable  certainty.  (6)  Under  this  rule  the  follow- 
ing phrases  have  been  held  to  create  an  estate  tail. 
"  To  a  man  and  his  seed.''  "  To  a  man  and  his  heirs 
male.'\e)  "  To  a  man  and  his  children,"  he  having 
no  children  at  the  time  of  the  devise,  (d)  "  To  a  man 
and  his  posterity."(e)  "  To  a  man  and  his  heirs  law- 
fully begotten."(/)  "  To  A  and  his  lawfully  begotten 
heir  forever,"  the  word  lieir  being  a  collective  name 
and  the  same  as  heirs,  (g) 

3.  If  it  be  the  wish  of  the  testator  to  give  an  estate 
for  the  life  of  the  devisee;  he  should  use  the  words, 
"  I  devise  to  A  all  that,  &c.  to  hold  for,  and  during 
the  term  of  his  life."  (k)  If  the  estate  to  the  devisee 
is  intended  to  be  for  the  life  of  another,  the  devise 
will  be  "  to  A,  to  hold  for  and  during  the  life  of  B.  (i) 

A  devise  to  a  man  without  expressing  the  nature 
of  the  estate,  will  create  an  estate  for  life,  ( j)  on  the 

(a)  2  Bl.  Com.  144.  (/)  Co.  Lit.  20. 

(6)  Hall  v.  Vandegrift,  3  Binn.  382.  (g)  Hall  v.  Vandegrift,  3  Binn.  374 

(c)  Co.  Lit.  9,  27.  (A)  Litt.  56. 

(d)6Co.  17.  (i)Ib. 

(e)  H.  Bl.  447.  (.;)  Co.  Litt.  42. 


58  CONSTRUCTION  OF  WILLS.  [BOOK  n. 

principles  that  the  testator  intended  a  benefit  to  the 
devisee,  and  that  every  grant  is  to  be  taken  most 
strongly  against  the  grantor. 

4.  An  estate  for  years  is  made  by  the  words  "de- 
mise grant  and  to  farm  let,"(o)  and  by  any  other 
words  which  clearly  denote  the  intention  of  the  testa- 
tor to  give  an  estate  for  years. 

Devises  are  either  executed,  or  such  as  take  effect 
immediately  on  the  death  of  the  devisor,  of  which 
we  have  spoken  above,  or  they  are  executory,  or  such 
as  vest  not  at.  the  death  of  the  testator,  but  depend  on 
some  contingency  which  must  happen  before  they 
can  take  effect;  as  if  one  devise  land  to  a  feme  sole 
and  her  heirs  upon  her  day  of  marriage;  or  to  a  child 
when  he  shall  attain  the  age  of  twenty-one  years,  (b) 
A  remainder  is  an  estate  limited  to  take  effect,  and  be 
enjoyed  after  another  estate  is  determined;  (c)  as  if  a 
man  grant  lands  to  A  for  twenty  years,  and  after  the 
determination  of  the  said  term,  then  to  B  for  twenty 
years. 

An  executory  devise  differs  from  a  remainder  in 
three  very  material  points.  1 ,  That  it  needs  not  any 
particular  estate  to  support  it;  such  is  the  instance 
put  above  of  a  devise  to  a  feme  sole  and  her  heirs 
upon  her  day  of  marriage,  (d)  2.  That  by  it  a  fee  sim- 
ple or  other  less  estate  may  be  limited  after  a  fee 
simple;  as  if  a  man  devise  lands  to  A  and  his  heirs, 
but  if  he  dies  before  the  age  of  twenty-one,  then  to 
B  and  his  heirs,  (e)  3.  That  by  this  means  a  remain- 

(a)  Shep.  Touch  14.  2  Bl.  Comn.  C.  20.  (d)  2  Bl.   Com.   164. 

(6)  2  Bl.  Com.  172.  (e)  Ib. 

fc   Ib.  164. 


CHAP,  i.]  OF  REVOCATIONS.  59 

der  may  be  limited  of  a  chattel  interest  after  a  par- 
ticular estate  created  thereof;  (a)  as  in  the  case  of  a 
long  lease,  it  may  be  given  to  A  for  life,  with  remain- 
der to  B.  And  money  may  be  subject  of  an  execu- 
tory devise.  (6) 

But  the  contingencies  in  all  cases  of  executory  de- 
vise must  happen  within  one  or  more  life  or  lives  in 
being  and  twenty-one  years  afterwards.  As  where 
lands  are  devised  to  such  unborn  son  of  a  feme  covert 
as  shall  first  attain  the  age  of  twenty-one  years,  and 
to  his  heirs.  Here  the  utmost  length  of  time  that  can 
happen  before  the  estate  can  vest,  is  the  life  of  the 
mother  and  subsequent  infancy  of  the  son.  (c) 

It  is  an  established  rule  that  a  limitation  shall  never 
operate  as  an  executory  devise,  when  it  may  take  ef- 
fect as  a  remainder,  (d) 

SECTION  VI. 

Of  Revocations. 

A  will  of  real  or  personal  estate  may  be  revoked 
or  annulled,  by  burning,  cancelling,  tearing  or  oblit- 
erating it.  (e)  But  no  will  in  writing,  of  real  or 
personal  estate,  can  be  altered  or  changed  by  words, 
except,  they  be  committed  to  writing,  in  the  life  time 
of  the  testator,  read  and  allowed  by  him,  and  proven 
to  have  been  so  done,  by  two  or  more  witnesses.  (/) 

Revocations  may  be  expressed  or  implied.  But 
acts  which  express  prima  facie,  an  intention  to  revoke 

(a)  Bl.  Com.  172.  3  Scott  v.  Price,  2  (e)  Boudinot  v.  Bradford,  2  Dall. 

Sergt.  &  R.  62.  268.  Buros  v.   Burns,  4  Sergt.  & 

(6)  Scott  v.  Price,  2  Sergt.  &  R.  62.  Rawle,  295.  Lawson  v.  Morrison, 

(c)Fearne.                                           •  2  Dail.  289. 

(d)  2.  Bos.  &  Pul.  298.  Haines  v.  (/)  Act  of  1705. 1  Sm.  L.  35.  Law- 

\Vitraer,  2  Yeates,  400.  son  v.  Morrison,  2  Dall.  280. 


60  OF  REVOCATIONS,  [BOOK  u. 

a  will,  may  be  explained,  by  showing  the  intention, 
with  which  they  were  done,  (a)  As  if  a  will  be  de- 
faced, cancelled,  torn  or  burnt,  evidence  may  be  giv- 
en, to  show  that  this  was  by  accident,  mistake  or 
fraud.  Thus,  if  A  throw  ink  upon  his  will,  instead 
of  sand;  or  having  two  wills  of  different  dates  in  his 
possession,  direct  B  to  cancel  one,  and  he  should  can- 
cel the  other,  by  mistake;  or  having  a  will  in  two 
parts,  he  unintentionally  burn  one;  (6)  or  if  upon  a 
supposition  that  he  had  executed  a  second  will  con- 
taining devises  of  real  estate  similar  to  those  in  the 
first,  and  to  the  same  persons,  he  cancel  the  first;  in 
all  these  cases  the  devise  shall  not  be  revoked,  (c) 
It  is  the  intention  therefore  which  must  govern  in 
such  cases,  and  parole  evidence  is  admissible  to  prove 
it.  (d) 

A  will  may  be  partially  cancelled,  by  expunging 
particular  parts;  and  alterations  in  pencil,  are  as  ef- 
fectual as  those  in  ink.  (e) 

An  express  revocation  may  be  made  by  a  will  or 
codicil  in  writing,  which  must  be  executed  in  legal 
form;  but  the  first  will  need  not  be  formally  can- 
celled. (/)  As  where  A  executed  a  will  in  due  form, 
disposing  of  the  whole  of  his  property,  of  which,  he 
subsequently  sold  part,  and,  purchased  other  estate; 
several  years  afterwards  he  drew  up  a  writing  head- 
ed "  Memorandum  of  the  last  will,"  &c.  by  which  he 
made  a  different  disposition  of  the  estate,  bequeath- 
ing the  whole,  and  appointing  executors;  this  paper 

(a)  Toller,  14.  2  Ball.  268.  Boudi-         297.  2  Dall.  289.  Ib.  267. 

not  v.  Bradford.  *  (e)  Toll.  Ex.  15, 

lb]  t  Eq.  Ca.  ab.  409.  (/)  Ibid.  Boudinot  v.  Bradford,  2 

(r)  1  Pr.  Wms.  343, 345.  Cowp.  52.          Dall.  268. 
(d)  Burns  Y.  Burns,  4  Sergt.  &  R. 


CHAP,  i.]  OF  REVOCATIONS.  61 

he  showed  to  B,  requesting  him  to  put  it  into  form: 
B  pointed  out  some  apparent  inconsistencies,  and  ad- 
vised him  to  apply  to  counsel;  A  replied,  that  he  be- 
lieved  he  would  do  so,  but  survived  the  conversation 
about  five  months;  during  which  he  was  in  health  and 
capable  of  transacting  business,  without  having  made 
any  alteration,  and  having  in  his  possession  the  first 
will  uncancelled.  It  was  held  that  the  paper  last 
executed,  being  duly  proved,  by  two  witnesses  was 
a  good  will,  and  revoked  the  former  one.  (a) 

But  if  a  new  will  be  made  in  consequence  of  fraud 
or  mistake  in  regard  to  fact,  it  does  not  revoke  a  for- 
mer one.  As  if  a  man  make  a  new  will,  upon  the 
false  supposition  of  the  death  of  a  legatee  in  a  former 
one,  the  legacy  will  not  be  revoked.  (6) 

It  is  essential,  that  the  second  will  should  expressly 
revoke  or  be  clearly  inconsistent  with  the  first;  for 
no  subsequent  disposition  shall  revoke  a  prior,  unless 
it  apply  to  the  same  subject,  (c)  It  is  also  necessary 
that  the  second  will  should  be  subsisting  and  effective 
at  the  time  of  the  testator's  death.  As  where  a  will 
was  made  in  1775,  and  another  in  1779,  and  the  first 
was  found  in  the  possession  of  the  testator  at  his  death 
uncancelled,  and  the  second  could  not  be  found,  it  was 
held  on  the  evidence  given  of  intention,  that  the  first 
will  was  not  revoked,  by  the  will  of  1779.  (d) 

Generally,  if  the  second  will  be  "effectually  can- 
celled, in  the  life  time  of  the  testator,  the  preceding 
one  not  having  been  cancelled,  is  ipso  facto  revived,  (c) 
But  the  particular  circumstances  of  the  case  must  be 

(a}  Arndt  v.  Arndt,  1  Sergt.  &  R.  256.      (<f)    Lawson  v.    Morrison,  2 
(6)  3  Ves.  Jr.  321.  Toll.  Ex.  17.  Dall.  289. 

(c)  Toll.  Ex.  17.  (c)  2  Dall.  289. 


62  OF  REVOCATIONS.  [BOOK  n, 

looked  to,  for  as  the  revocation  is  a  question  of  in- 
tention, evidence  may  be  received,  to  show  with  what 
design  the  testator  cancelled  a  will;  (a)  and  this  as 
well  as  other  revocations  in  law  must  be  proved  as 
other  matters  of  fact,  without  regard  to  the  form  of 
the  act  for  the  probate  of  wills.  (6) 

The  following  rule  with  regard  to  wills  was  laid 
down  by  the  court  in  the  case  of  Irish  v.  Smith,  (c) 
"  Where  a  man  retains  a  revocable  instrument,  with 
full  Opportunity  of  revoking  it,  and  does  not  revoke  it, 
there  is  strong  presumption,  that  he  wishes  it  to  stand, 
though  at  first,  it  might  have  been  unfairly  obtained 
from  him.  But  there  is  no  such  presumption,  where 
soon  after  the  execution  of  the  instrument,  he  is  taken 
ill  and  dies;  or  where  from  the  time  of  execution  to 
his  death,  his  intellects  were  too  weak  to  judge  of 
the  propriety  of  revocation." 

Implied  revocations  depend  on  the  supposed  in- 
tention of  the  parties.  The  law  presumes  such  in- 
tention, where  the  circumstances  of  the  testator  are 
materially  altered,  after  making  his  will.  Thus  mar- 
riage and  birth  of  a  child  whether  posthumous  or 
otherwise  is  a  revocation  of  a  will,  (d)  This  pre- 
sumption may  however  be  rebutted,  by  every  kind 
of  evidence;  and  it  cannot  be  sustained,  unless  there 
have  been  marriage  and  issue;  (c)  (unless  there  be 
some  evidence  <5f  an  intention  on  the  part  of  the  tes- 
tator to  modify  his  will,  which  connected  with  the 
subsequent  birth  of  issue  will  revoke  it;)  (/)  nor  un- 

(a)  Toll.   Ex.   17.  Bouclinot  et  al.  (J)  Ld.  Raym.  441. 1  P.  Wms.  304. 
v.  Bradford,  2  Yeates,  170.  5  Term.  R.  49. 

(b)  Burns  v.  Burns,  4  Sergt.    and  (e)  Wooddes  373.  3  Wils.  516,  2 
U.  297.  Fonbl,  350,  n. 

(c)  8  Sergt.  and  R.  580.  (/)  5  T.  R.  52,  n. 


CHAP,  i.]  OF  REVOCATIONS.  63 

less  there  have  been  a  total  disposition  of  the  whole 
estate-,  nor  is  a  will  made  in  favour  of  children  of  a 
first  marriage  revoked  by  a  subsequent  marriage  and 
the  birth  of  children  of  such  marriage,  the  second 
wife  and  her  children  being  provided  for  by  settle- 
ment, (a)  These  points  have  been  settled  by  the 
common  law,  in  regard  to  the  revocation  of  an  en- 
tire will. 

But  by  the  23d  Section  of  the  Act  of  1794,  (6)  a 
will  is  revoked  by  a  subsequent  marriage  or  birth  of 
issue,  so  far,  and  so  far  only  as  it  relates  to  the  interest 
of  the  wife,  or  issue.  And  the  wife  or  child  stands  in 
the  same  situation  as  if  the  husband  had  died  intes- 
tate, (c) 

A  will  made  by  a  single  woman  is  revoked  by  her 
subsequent  marriage,  (d)  and  is  not  revived  by  the 
death  of  the  husband,  (e) 

A  will  made  many  years  before,  believed  by  the 
testator  to  be  destroyed,  but  detained  by  one  of  the 
devisees,  to  prevent  its  being  cancelled  or  altered,  is 
thereby  avoided.  (/)  It  is  necessary  as  we  have  seen 
that  the  revocation  of  a  will  should  be  in  writing,  or 
by  words  of  the  testator  reduced  to  writing  before 
his  death  and  read  to  him,  but  it  is  not  necessary  to 
make  a  new  will,  the  republication  of  a  former,  will 
revoke  one  of  a  later  date,  (g) 

Where  there  is  a  will  in  writing  of  a  later  date,  and 
evidence  is  given,  of  a  parole  publication  of  a  will  in 
writing,  of  an  earlier  date,  parole  proof  may  be  given, 

(a)  7  Ves.  jr.  348.  Ca.  534. 

(6)  3  Sm.  L.  152.  (e)  Doe  v.  Staple,  2  Term  R  695. 

fc)  Coates  v.  Hughs,  3  Binn.  498.  (/)  Anoo.  Sup.  Ct.  1  Sm.  L.  41. 

(d)  Cotter  v.  Layer,  2  P.  Wms.  (g-)  Havard  v.  Davis,  2  Binn.  406. 
624.  Hodsden  v.  Lloyd,  2  Bro.  Ch. 


64  OF  REVOCATIONS.  [BOOK  H. 

of  the  contents  of  the  earlier  will,  in  order  to  ascer- 
tain, whether  the  two  wills  are  different-,  if  the  will 
itself  cannot  be  found,  and  the  usual  ground  is  laid, 
for  introducing  secondary  evidence,  (a) 

On  the  question  of  the  validity  of  a  will,  a  witness 
may  be  examined,  to  ascertain  with  what  mind  the 
will  was  cancelled.  (6) 

There  are  also  revocations  in  the  nature  of  ademp- 
tion — which  is  a  disposition  of  the  estate,  in  a  manner 
inconsistent  with  the  will,  and  this  may  be  in  whole 
or  in  part.  As  if  A  devise  a  farm  to  B,  and  after- 
wards sell  a  part  of  it,  this  will  be  a  revocation  of 
only  so  much  as  was  sold:  And  if  the  subsequent  dis- 
position of  the  testator  amount  only  to  an  incum- 
brance  upon  the  estate,  devised,  it  will  not  be  an 
ademption,  but  the  devisee  takes  the  devise,  with  the 
burthen,  (c)  If  a  testator  make  a  specific  legacy  of 
personal  estate,  and  sell  or  give  away  the  article  be- 
queathed, this  will  be  an  ademption,  even  though  he 
purchase  another  article  of  like  nature  to  that  be- 
queathed, (d) 

A  republication  of  a  will  is  subject  to  the  same 
ceremonies  as  the  original  execution.  A  will  may 
be  republished.  with  a  codicil  thus  executed,  and 
the  codicil  and  will  are  considered  as  making  one 
instrument.  If  the  terms  of  the  will  be  sufficiently 
comprehensive,  such  republication  will  pass  under 
the  will,  lands  purchased  after  its  date,  and  before  its 
re-execution,  (e)  or  before  the  date  of  the  codicil,  or 

(a)  Havard  v.  Davis,  2  Binn.  406.  (c)  Toller,  Ex.  21. 
(6)  Boudinot  v.  Bradford,  2  Ball.      d)  Ibid.  23. 

266.  Lawson  v.  Morrison,  2  Dall.  (e)  Havard  Y.  Davis,  2  Binn.  414. 

287.  n. 


CHAP.  n.J  OF  THE  REGISTER.  *  65 

lands  contracted  for,  before  the  date  Of  the  will,  but 
conveyed  between  the  date  of  the  will  and  codicil. 
(a)  If  lands  be  mentioned  in  a  will  under  a  specific 
character,  a  republication  will  not  affect  lands  sub- 
sequently purchased.  But  if  a  testator  says  in  his  will, 
I  give  all  my  real  estate,  a  republication  will  pass 
after  purchased  lands,  because  it  is  then,  the  same  as 
if  he  had  made  a  new  will,  (b) 


CHAPTER  II. 

OF  PROBATE. 

OF  THE    REGISTER — REGISTER'S   COURT ISSUE   TO    THE 

COMMON  PLEAS APPEAL EFFECT  OF  PROBATE. 

SECTION   I. 

Of  the  Register. 

By  act  of  assembly  of  1705  it  was  enacted,  that  a 
Register  General  should  be  appointed  by  the  go- 
vernor, for  the  probate  of  wills  and  granting  letters 
of  administration,  (c)  This  officer  was  directed  to 
reside  in  the  city  of  Philadelphia  and  to  appoint  a  de- 
puty in  each  of  the  counties.  By  the  act  of  seventh 
June,  1712,  his  powers  and  duties  were  further  re- 
gulated: But  that  act  was  altered  and  supplied  by 
the  act  of  fourteenth  March,  1777;  (d)  and  the  office 
of  Register  General  of  wills,  was  formally  abolished  in 
consequence  of  the  change  of  government,  and  the 

(a)  2  Mau.  &  Sel.  5.  1  Meci.  Ross.  R.  482. 

1  Mod.  Rep.  285.  Howard  v.  Da-  (c)  1  Sm.  L.  35. 

vis,  2  Binn.  414.  (rf)  Ib.  443. 

(6)  Cowp.  132.  Roll.  abr.  618.  7  T. 

I 


(36  OF  THE  REGISTER.  [BOOK  ri. 

direction  of  the  34th  section  of  the  constitution  of  1776, 
which  'provided  for  a  register  and  recorder's  office  in 
each  county  of  the  state,  and  vested  the  appointment 
of  the  officers  in  the  general  assembly.  By  the  present 
constitution,  Art.  5,  Sec.  11 ,  a  register's  office  for  the 
probate  of  wills  and  granting  letters  of  administra- 
tion is  to  be  kept  in  each  county;  and  by  Art.  6,  Sec. 
3,  in  the  county  town  of  each  county,  unless  when  the 
governor  shall,  for  special  reasons,  dispense  therewith 
for  any  term,  not  exceeding  five  years  after  the  coun- 
ty shall  have  been  erected.  The  officers  are  ap- 
pointed and  removed  at  the  will  of  the  executive. 

To  these  officers  belong  the  power  of  the  English 
ecclesiastical  courts  relating  to  the  probate  of  wills; 
and  before  them,  all  wills  made  in  the  state,  are  to 
be  proven.  But  wills  made  out  of  the  state,  though  they 
must  be  recorded  by,  need  not  be  proven  before  the 
register. 

For,  by  the  above  recited  act  of  1705,  it  is  pro- 
vided, That,  all  wills  in  writing  proved  in  the  chan- 
cery in  England,  and  the  bill,  answer  and  deposition 
transmitted  hither,  under  the  seal  of  that  court;  or 
being  proved  in  the  Hustings,  or  Mayor's  Court  in 
London,  or  in  some  Manor  Court,  or  before  such  as 
have  power  in  England  or  elsewhere,  to  take  pro- 
bate of  wills,  and  grant  letters  of  administration;  and 
a  copy  of  such  will,  with  the  probate  thereof  annex- 
ed or  indorsed,  being  transmitted  hither,  under  the 
public  or  common  seal  of  the  courts  or  offices  where 
the  same  have  been  or  shall  be  taken  or  granted,  and 
recorded  or  entered  in  the  Register  General's  office 
in  this  province,  (commonwealth)  shall  be  good  and 
available  in  law;  for  the  granting,  conveying  and  as^ 


CHAP.  H.]  OF  THE  REGISTER.  67 

suring  of  the  lands  or  hereditaments  thereby  given 
or  devised,  as  well  as  the  goods  and  chattels  thereby 
bequeathed;  and  all  such  probates,  as  well  as  all  let- 
ters of  administration  granted  out  of  this  province, 
and  produced  here,  are  declared  to  be  matter  of  re- 
cord, and  sufficient  to  enable  the  executors  and  ad- 
ministrators by  themselves  or  attornies,  to  bring  their 
actions  in  any  court,  as  if  the  probates,  or  letters  tes- 
tamentary or  administrations  were  granted  here,  and 
produced  under  the  seal  of  the  register  (general)  of 
this  province  (commonwealth.) 

Under  this  statute,  an  exemplification  of  a  will 
made  in  England  and  certified  generally,  to  have 
been  proven,  approved  and  registered  in  the  year 
1704,  in  the  prerogative  court  of  Canterbury,  under 
the  seal  of  that  court,  was  allowed  to  be  read  in  evi- 
dence-, (a)  even  though  not  recorded  in  the  office 
here,  (b) 

The  respective  registers,  must  give  security  in  the 
sums  fixed  by  the  act  fourteenth  March  1777-,  and  in 
the  counties  since  erected,  by  the  several  acts  dividing 
and  establishing  them,  (c)  By  the  act  of  1777,  they 
are  empowered  and  authorized  to  appoint  deputies, 
to  officiate  in  their  absence,  for  whose  conduct  thev 

t  */ 

are  responsible.  And  the  registers,  their  heirs,  exe- 
cutors and  administrators,  are  required  to  deliver  up 
to  the  persons  appointed  to  succeed  them  in  their  of- 
fices respectively,  all  the  records  and  other  writings, 
and  the  seals  of  their  offices,  whole,  safe  and  unde- 
faced,  under  the  penalty  of  three  thousand  pounds,  (d) 

(a\  1  Ball.  2  Weston  v.  Stammers,      (c)  1  Sra.  L.  37.  n. 
(6)    Morris  Less  v.   Vandereo,  1     (rf)  Sec.  5.  1  Sm.  L.  4-44. 
Dall.  66. 


68  OF  THE  REGISTER.  [BOOK  n. 

The  probate  of  the  will  is  to  be  made  before  the  re- 
gister, on  the  oath  or  affirmation  of  two  or  more  witness- 
es (a.)  But  circumstances  may  supply  the  want  of  one 
witness  where  they  go  directly  to  the  immediate  act 
of  disposition.  (6)      It  would   seem,  however,   that 
proof  before  the  register  is  not  indispensible:     For  a 
will  proven  by  two  witnesses  before  a  justice  of  the 
peace,  and  registered,  was  admitted  in  evidence:  (c.) 
The  Court  observing   "  It  would  certainly  be  more 
regular  to  prove  the  will  before  the  register  of  the 
county;  because  it  is  a  branch  of  his  duty,  which  he 
must  be  supposed  to  understand  better  than  a  justice 
of  the  peace.     But  the  act  does  not  expressly  con- 
fine the   depositions  to  be  taken  before  the  register 
within  the  state;  and  we  well  know  that  many  wills  in 
several  counties,  have  been  proven  before  justices  of 
the  peace."  (d) 

If  the  will  be  proven  in  one  county,  it  is  unneces- 
sary to  prove  it  in  any  other,  wherever  the  estate  of 
the  testator  may  lie.  (e) 

If  there  be  devises  of  real  estate,  in  another  state, 
or  in  a  foreign  country,  the  will  must  be  executed 
and  proved  according  to  the  laws  of  such  state  or 
country;  (/)  but  if  the  will  be  of  personal  estate  we 
have  seen  that  it  is  to  be  executed  and  proven  accord- 
ing to  the  law  of  the  country  in  which  the  testator 
was  resident  immediately  before  his  death,  (g) 
If  there  be  several  executors  appointed,  even  with 

(a)  Act  1705.  (d)  Sharp  v.  Petit.  4  Yeates,  413. 

(6)  Eyster  v.  Young,  3  Yeates  571,  (e)  Act  1705,  Sec.  8,  1  Sm.  L.  35. 

see  the  case  stated  more  at  length  (f )  Toll.  Ex.  72. 

infra.  (§•)  1  Binn.  366.  Desesbas  r.  Ber- 
'<?)  Sharp  v,  Petit*  4  Yeates,  413.  quier. 


CHAP,  ii.]  REGISTER'S  COURT.  69 

separate  and  distinct  powers,  yet  one  probate  is  suf- 
ficient: (a)  Nor  is  new  probate  of  the  will  necessary 
when  the  administration  passes  by  the  will  of  the  ex- 
ecutor, to  his  executor,  (b) 

If  the  will  be  lost,  two  witnesses  superior  to  all  ex- 
ception, who  have  read  the  will,  proving  its  existence 
after  the  death  of  the  testator;  remembering  its  con- 
tents and  deposing  to  its  tenor,  are  sufficient  to  estab- 
lish it.  (c)  So  where  the  will  has  been  rendered  in 
part  illegible  by  accident,  on  proof  of  its  substance  by 
witnesses  probate  will  be  granted,  (d) 

If  a  will  be  in  a  foreign  language,  the  probate  is 
granted  of  a  translation  by  a  notary  public,  (e) 

When  the  will  is  to  be  contested  a  caveat  may  be 
entered  in  the  register's  office  to  prevent  the  probate. 
And  it  seems  that  the  caveat  will  stand  in  force 
for  three  months,  and  whilst  it  is  pending,  probate 
cannot  be  granted.  (/) 

SECTION  ir. 
Register's   Court. 

Under  the  act  of  seventh  June,  1712,  the  register 
was  required  to  call  to  his  assistance  two  or  more  of  the 
Justices  of  the  Court  of  Common  Pleas,  to  decide  upon 
caveats  entered  against  the  proving  of  wills,  and  to  set- 
tle the  accounts  of  executors  or  administrators,  or  make 
distribution  of  decedent's  estates,  (g)  Mr.  Purdon 
thinks  this  act  is  unrepealed-,  it  is  however  certainly 

(a)  Bac.  Ab.  30.  Off.  Ex.  13.  (e)  Toll.  Ex.  73. 

(b)  Salk.  309.  (/}  Ibid. 

(c)  4  Burn.  Ex.  L.  202.  (g)  Purd.  Ab.  477.  Comm'th  v.  Bra- 

(d)  Off.  Ex.  Sup.  215,  7  Bac.  Ab.         dy,  3  Sergt.  &  R.  310.   Law  of 
320.  Penn.  Gall.  ed.  64. 


70  REGISTER'S  COURT.  [BOOK  n. 

supplied,  except  in  relation  to  caveats,  by  the  estab- 
lishment of  the  register's  court,  under  the  present  con- 
stitution, having  appellate  jurisdiction  from  the  re- 
gister. 

By  art.  5,  sec.  7  of  the  constitution,  the  judges  of  the 
Courts  of  Common  Pleas,  or  any  two  of  them  compose 
a  register's  court  in  each  county.  By  the  act  of  April 
thirteenth,  1791,  (a)  and  the  supplement  thereto  pas- 
sed thirtieth  September,  1791,  (5)  the  duties  and  pow- 
ers of  this  court  are  prescribed  and  regulated-  Its 
jurisdiction  is  merely  appellate,  except  in  cases  of 
caveats  against  the  probate  of  wills,  of  all  acts  and  de- 
cisions of  the  register;  and  the  appeal  must  be  made 
within  two  years,  unless  where  minors,  feme  coverts, 
persons  non  compos  mentis  pr  absentees,  and  their  re- 
presentatives, are  appellants;  to  these,  five  years  are 
allowed  after  the  removal  of  the  disability,  (c) 

In  the  proceedings  before  this  court,  the  depositions 
of  the  witnesses  in  any  cause  litigated,  must  be  taken 
in  writing  and  made  part  of  the  record,  upon  which 
the  decree  of  the  court  may  be  reversed  for  any  er- 
ror in  law,  or  in  fact,  or  affirmed  according  to  the  me- 
rits and  justice  of  the  case.(d)  The  authority  of  the 
court  is  very  limited  being  confined  to  decisions  on 
caveats  respecting  the  validity  of  wills,  and  contro- 
versies as  to  whom  letters  of  administration  shall  be 
granted,  (e)  It  has  no  power  to  settle  the  ac- 
counts of  executors  or  administrators,  nor  to  issue  a 
citation  to  them  for  that  purpose-,  and  consequently  it 
cannot  issue  an  attachment  for  disobedience  to  such 

(a)  3  Sm.  L.  34.  Sra.  L.  34 

(6)  Ib.  58.  (e)  Comm'th  v.  Brady.  3  Sergt.  & 

(c)  Appendix  No.  9.  R.  310. 

(d)  Act.  13th  April  1791,  Sec.  18. 


CHAP,  n.]          ISSUE  TO  COMMON  PLEAS.  71 

citation,  (a)  The  act  of  1712  so  far  as  it  concerned 
the  final  settlement  of  the  accounts  of  executors  and 
administrators,  was  not  in  force  at  the  time  of  the 
adoption  of  the  present  constitution,  being  either  re- 
pealed by  implication  or  obsolete,  (b) 

The  settlement  of  the  accounts  of  executors  and 
administrators  having  been  expressly  given  to  the 
Orphan's  Court,  by  the  act  of  March,  1713,  the  re- 
gister himself  cannot  issue  an  attachment  to  compel 
such  settlement  before  him.  (c) 

SECTION  in. 
Issue  to  Common  Pleas. 

If  the  facts  in  the  cause  be  disputed  the  Court,  at 
the  request  of  either  party,  must  send  an  issue  (d) 
into  the  Common  Pleas  to  ascertain  them:  and  a  ver- 
dict thereon  is  declared  by  the  statute  to  be  conclu- 
sive, and  a  further  examination  into  the  facts  on  an  ap- 
peal from  this  court  is  forbidden.  The  court  is  not 
confined  as  it  regards  the  sending  an  issue  to  the 
Common  Pleas  to  the  request  of  the  parties;  but 
where  the  dispute  is  on  the  fact  of  the  execution  of 
the  will,  or  the  sanity  of  the  testator,  it  may,  at  its 
own  instance,  have  the  facts  tried  by  a  jury,  but  when 
the  dispute  is  about  the  legality  of  the  execution  the 
court  is  the  proper  tribunal,  (e) 

In  the  suit  in  the  Common  Pleas  on  the  feigned  is- 
sue the  declaration  must  pursue  the  words  of  the  Re- 
gister's Court  or  the  defendant  is  not  bound  to  plead  to 
itj  (/)  and  if  no  declaration  be  filed,  it  would  be  er- 

(a)  Com'th  v.  Brady,  3  Sergt.  &  R.  (e)  I  Stn.  L.  40.  n. 

(6)  Ibid.  (/)  Ingersoll  v.  Bradford,  4 

(e)Ibid.  176. 

(d)  Appendix  No.  10- 


72  ISSUE  TO  COMMON  PLEAS.  [BOOK  u. 

ror.  (a)  But  the  defendant  may  have  a  rule  on  the 
plaintiff,  by  application  to  the  court,  to  declare  in  a 
reasonable  time,  pursuant  to  the  order  of  the  Regis- 
ter's Court,  or  that  a  non-pros,  be  entered,  (6)  The 
practice  of  trying  the  question  sent  out  by  the  Regis- 
ter's Court  under  the  form  of  a  feigned  issue  has  been 
uninterrupted  since  the  passage  of  the  act  of  1791.  (c) 
and  the ,  Court  of  Common  Pleas  always  puts  the 
issue  directed  by  the  Register's  Court  into  form,  (d) 

The  action,  placed  on  the  record  of  the  Common 
Pleas,  has  been  treated  like  other  actions.  It  may  be 
removed  to  the  Supreme  Court  by  certiorari  and  tried' 
by  jury  there.  A  writ  of  error  lies  upon  the  judg- 
ment of  the  Common  Pleas  in  it:  and  that  court  may 
order  a  new  trial,  but  the  Register's  Court  cannot,  (e) 
There  is  however  one  difference  between  this  and 
ordinary  actions  in  the  Common  Pleas;  the  plaintiff 
cannot  enter  a  non-pros,  because  that  would  defeat 
the  act  of  assembly  which  directs  the  issue  to  be  tri- 
ed and  the  verdict  to  be  returned  to  the  register.  (/) 

Upon  the  trial  of  the  issue,  devisavit  vel  non  the 
executor  plaintiff  cannot  be  a  witness,  being  liable  for 
costs,  (g)  nor  can  the  declarations  of  one  named  as 
executor,  or  devisee  be  received,  though  he  be  not  a 
party  to  the  suit;  (h)  nor  is  a  will  of  an  earlier  date  pro- 
ven exparte  before  the  register  at  the  instance  of  the 
defendant  whilst  the  suit  was  pending,  evidence  in 
such  issue:  (i)  nor  where  two  out  of  three  subscribing 

(a)  Wallace  v.  Elder,  5  Sergt.  &    (e)  Vanzant  v.  Boileau.  1  Binn.  448. 

R.  143.  (/)lbid. 
(6)  4  Yeates  176,  Ingersoll  v.  Brad-    (g)  Ibid. 

ford.  (fc)  Miller  v.  Miller,  3  Sergt.  &  R. 

(c)  Vanzant  v.    Boileau,  1    Binn.         Bovard  v.    Wallace,  4   Sergt.  & 

448.  R.  499. 

(</)  1  Binn.  449.  (i)  Hantz  v.  Hull,  2  Binn.  511. 


OHAP.II.]          ISSUE  TO  COMMON  PLEAS.  73 

witnesses  to  a  will,  prove  it,  and  no  evidence  is  offer- 
ed of  the  hand  writing  of  a  third  who  is  out  of  the 
state,  can  the  declarations  of  such  third  witness  be  re- 
ceived to  impeach  the  sanity  of  the  testator,  (a) 

In  the  case  of  Irish  v.  Smith,  (b)  an  issue  from  the 
Register's  Court,  devisavit  vcl  now,  the  following  points 
of  evidence  were  ruled  by  the  Supreme  Court. 

For  the  purpose  of  destroying  the  validity  of  a  pa- 
per set  up  as  a  will,  evidence  may  be  given,  that  in 
consequence  of  a  paralytic  stroke,  some  time  before 
the  execution  of  the  paper,  the  testator's  intellects 
were^impaired,  and  continued  so,  until  the  time  of  its 
execution  and  afterwards. 

A  witness  called  to  impeach  an  alleged  will,  on 
the  ground  of  the  mental  imbecility  of  the  testator, 
may  be  asked  on  the  cross  examination,  whether  he 
has  not  accepted  a  devise  under  the  will. 

A  witness  may  be  asked  whether  she  knew,  whe- 
ther or  not  the  eye-sight  of  the  testator  was  good 
enough  to  have  enabled  him  to  recognize  her,  when 
near  her,  if  his  mind  had  been  right. 

A  witness  may  be  permitted  to  testify  that  he  "  vis- 
ited the  testator;  he  would  look  at  him  with  a  vacant 
stare  j  after  speaking  with  him  and  telling  him  who  he 
was,  he  would  answer;  his  countenance  and  appear- 
ance indicated  childishness." 

Evidence,  that  the  wife  of  the  testator  observed  to 
a  witness,  in  the  presence  of  her  husband,  "  that  he 
did  not  attend  to  business,  that  he  was  incapable,"  to 
which  the  husband  said  nothing,  is  admissible. 

(a)  Fox  v.  Brans,  3  Yeates  506.         (b)  8  Sergt.  &  R.  573. 

K 


74  APPEAL  FROM  REGISTER'S  COURT.      [BOOK  n. 

Where  the  validity  of  a  will  is  impeached  on  the 
ground  of  the  incapacity  of  the  testator,  and  of  fraud 
in  procuring  it,  and  an  earlier  will  is  attempted  to 
be  established,  a  cancelled  will  in  his  hand  writing, 
found  among  his  papers,  made  at  an  antecedent  period, 
when  his  understanding  was  unquestionable,  and  he 
was  not  assailed  by  intrigue,  may  be  given  in  evi- 
dence, to  show  what  were  then  his  intentions  as  to  the 
disposition  of  his  property,  and  also  to  show  his  man- 
ner of  cancelling  a  will  which  he  meant  to  annul. 

Entries  made  by  a  testator  in  a  book,  form  a  cir- 
cnmstance  in  favour  of  his  sanity,  though  they  be  not 
conclusive.  The  force  of  such  evidence  is  to  be  de- 
termined by  the  jury. 

The  jury  may  infer  incapacity  to  make  a  will,  from 
facts  anterior  to  its  execution. 

Where  there  is  no  evidence  of  infirmity  of  mind 
at  the  time  of  the  execution  of  the  will,  and  the  sub- 
scribing witnesses  are  uncontradicted,  infirmity  may 
be  inferred  from  anterior  and  subsequent  facts. 

But  such  inference  cannot  be  drawn  from  a  conver- 
sation between  the  testator  and  a  witness  without  dis- 
closing to  the  jury  what  the  conversation  was. 

SECTION  IV. 

Appeal  from  Registers  Court. 
An  appeal  lies  from  any  final  decree  or  sentence 
pronounced  by  the  Register's  Court,  to  the  Supreme 
Court,  in  all  cases  where  the  sum  mentioned  in  the 
decree,  sentence,  or  judgment  shall  exceed  the  sum 
of  fifty  pounds,  (a)  But  the  appeal  does  not  stay  the 

(o)  3  Stn.  L.  153.  Act  1794.  5  SKI.  L.  17.  Act  11  Mar.  1809. 


OHAP.  ii.]     APPEAL  FROM  REGISTER'S  COURT.  75 

proceedings  or  prejudice  the  acts  of  any  executor  or 
administrator,  pending  the  same,  provided  the  exec- 
utor give  to  the  register  sufficient  surety  for  the  faith- 
ful execution  of  the  will:  And  if  he  refuse  the  regis- 
ter may  grant  letters  of  administration  during  the  dis- 
pute, pendent  lite,  (a) 

The  party  appealing  or  taking  a  writ  of  error,  (the 
latter  of  which  is  given  by  the  act  of  eleventh  March, 
1809,)  must  make  oath  or  affirmation,  to  be  filed  with 
the  record,  that,  the  same  is  not  intended  for  delay: 
and  must  enter  into  recognizance,  to  the  appellee  with 
two  sufficient  sureties  conditioned  to  prosecute  his  ap- 
peal with  effect,  and  if  the  decree  be  affirmed,  or  the 
appellant  fail  so  to  prosecute  his  suit,  to  abide  the  de- 
cree in  appeal,  and  pay  double  costs.  (6) 

By  the  words  of  the  act  of  assembly,  thirteenth 
April,  1791,  Sec.  18,  the  court  on  appeal  is  forbidden 
to  examine  into  the  facts  established  by  a  verdict  on 
an  issue  sent  out  by  the  Register's  Court,  to  try  the 
validity  of  the  will.  It  would  seem  to  have  been  the 
intention  of  the  legislature  to  make  one  inquiry  con- 
clusive, as  to  the  fact  of  making  the  will,  but  the  Su- 
preme Court  have  thought  differently,  and  a  contra- 
ry construction  has  been  given  to  the  act  of  assembly 
almost  from  its  passage. 

The  point  first  came  under  consideration  in  the  case 
of  Walmsley  v.  Read,  (c)  This  was  an  ejectment* 
in  which  the  defendants  claimed  under  the  will,  which 
having  been  established  by  verdict  in  the  Common 
Pleas  on  an  issue  sent  out  by  the  Register's  Court  at 

(a)  Act  13th  April,  1791.  2  Sin.  L.      (6)  2  Sin.  L.  33.  Appendix  II,  12, 
34.  (c)  1  Yeates,  87.  October,  1791 


76  APPEAL  FROM  REGISTER'S  COURT.     [BOOK  n. 

the  request  of  one  of  the  parties,  they  claimed  to  be 
conclusive.  But  the  court  said,  that  they  could  not 
compel  the  defendants  to  give  other  testimony,  yet 
they  would  permit  the  plaintiff  to  examine  the  wit- 
nesses to  the  will,  who  had  given  evidence  in  its  sup- 
port on  the  feigned  issue,  and  to  offer  any  other  testi- 
mony to  impugn  the  will:  That  there  is  nothing  in 
the  act  of  1705,  or  1780,  or  thirteenth  April,  1791, 
which  shows  an  intention  in  the  legislature,  that  such 
a  probate  should  be  conclusive  evidence  of  a  mill  of 
lands.  The  court  cannot  wish  the  law  should  be  so. 
Suppose  the  utmost  integrity  and  ability  possessed  by 
every  register,  they  are  still  subject  to  error;  and  if 
even  the  fullest  hearing  has  been  had  of  all  the  con- 

O 

tending  parties,  which  is  not  generally  the  case,  still 
new  evidence  and  additional  circumstances  may  turn 
up,  which  would  weigh  greatly  in  the  scale  of  justice. 
We  are  of  the  opinion  that  the  plaintiff  in  the  present 
case  may  give  evidence  of  insanity,  duress,  forgery, 
fraud,  undue  influence,  &c.  in  or  upon  the  testator. 

In  the  case  of  Coates  v.  Hughes,  (a)  this  construc- 
tion was  recognized  as  established  law;  and  the  cases 
of  Flmver's  will,  and  Fangordon  v.  Vangordon  were 
mentioned,  in  which,  the  question  had  been  also  de- 
termined, and  subsequently  C.  J.  Tilghman  laid  down 
the  law  in  the  following  terms:  "  When  a  writing  is 
exhibited  as  a  last  will  and  testament,  and  a  caveat 
filed  against  the  probate  of  it,  either  party  may  de- 
mand a  trial  by  jury;  and  in  such  case  the  Register's 
Court,  directs  an  issue  to  determine  the  validity  of 
the  will,  to  be  tried  in  the  Common  Pleas.  The  is- 

(a)  3  Bitm.  506. 


CHAP,  ii.]  EFFECT  OF  PROBATE.  77 

sue  being  tried  and  returned,  the  Register's  Court 
are  to  take  the  fact  as  settled.  With  regard  to  personal 
estate  the  decision  is  absolute,  but  the  verdict  on  the 
issue  is  not  considered  as  conclusive  with  respect  to 
real  estate."  (a) 

Notwithstanding  the  distinction  between  the  pro- 
bate of  wills  of  real  and  personal  estate  is  thus  settled, 
the  reason  upon  which  it  is  founded  does  not  appear 
to  be  very  clear  or  forcible.  The  argument  in  Wal- 
mesly  v.  Read,  is  equally  strong  against  the  conclusive- 
ness  of  the  probate  of  a  will  of  personal,  as  of  real  es- 
tate. As  the  law  stands,  a  party  interested  to  the 
value  of  8100,000  in  a  will  of  personal  estate,  will  be 
concluded  from  contesting  a  verdict  on  a  feigned  is- 
sue, under  circumstances  which  would  open  the  ver- 
dict where  the  value  of  the  real  estate  was  but  ten 
dollars.  It  is  wrong  perhaps  to  prohibit  an  inquiry 
into  facts  after  a  verdict  upon  a  feigned  issue;  but  in 
the  existing  state  of  society,  when  personal  property 
is  entitled  to  very  little,  if  any,  less  consideration  than 
real,  can  there  be  any  good  reason  that  a  distinction 
should  be  made  in  this  respect  between  them? 

SECTION  v. 
Effect  of  Probate. 

Although  the  probate  does  not  confer,  it  authenti- 
cates the  right  of  the  executor  j  for  the  courts  take  no 
judicial  notice  of  an  executor  until  he  have  proven  the 
will;  but  the  probate  has  relation  to  the  time  of  the 
testator's  death.  (&)  It  is  conclusive  as  to  personalty 
until  repealed,  and  therefore  payment  of  money  to  an 

(a)  Spangler  v.  Rambler,  4  Sergt.     (b)  11  Vin.  ab.  76.  Off.  Ex.  49.  Toll, 
&R.  193.  Ex.75. 


78  EFFECT  OF  PROBATE.  [BOOK  n. 

executor  who  had  obtained  probate  of  a  forged  will 
is  a  discharge  to  the  debtor  of  the  intestate,  although 
probate  be  afterwards  revoked  and  administration 
granted,  (a)  And  on  the  same  principle,  pending  a 
suit  respecting  the  validity  of  a  will,  an  indictment  for 
forging  it  ought  not  to  be  tried.  (6) 

The  probate  of  nuncupative  wills  must  of  course 
be  made  in  the  manner  prescribed  by  the  act  of  assem- 


After  probate  duly  made  and  oath  or  affirmation 
taken  by  the  executor,  well  and  truly  to  administer 
the  goods  and  chattels,  rights  and  credits  of  the  de- 
ceased, and  to  make  a  true  and  perfect  inventory 
thereof,  and  exhibit  the  same  in  the  register's  office, 
within  one  month  from  the  date  of  the  probate,  and  a 
true  and  just  calculation  and  reckoning  of  his  adminis- 
tration within  one  year,  (d)  letters  testamentary  are 
issued  reciting  the  probate  and  oath,  and  certifying 
that  administration  was  duly  committed  to  the  exec- 
utor. (c)  These  letters  are  signed  by  the  register,  and 
sealed  with  his  seal  of  office.  (/) 

(a)  Allen  v.  Dundas,  3  T.  R.  125.        (d]  Appen.  No.  13. 
(6)  1  Stra.  481,  703.  (e)  Toll.  Ex.  34. 

(0  Vide  Supra.  (/)  Appen.  14. 


THE  LAW  OF  DECEDENTS 


BOOK  III. 

OF  THE  RIGHTS  AND  DUTIES  OF  EXECUTORS  AND 
ADMINISTRATORS. 

- 

•"•*• —  .''o- 

CHAPTER  I. 

WHAT  IS  AN  EXECUTOR WHO  MAY  BE — HOW  HE  MAY  BE 

APPOINTED — ACCEPTANCE  OR  REFUSAL — REVOCATION 

OF  LETTERS  TESTAMENTARY EXECUTOR  BE  SON  TORT 

— POWER  OF  THE  EXECUTOR  BEFORE  PROBATE. 

SECTION  I. 

What  is  an  executor — who  may  be — how  appointed. 

An  executor  is  he  to  whom  another  man  commits  by 
will  the  execution  of  that,  his  last  will  and  testament, 
(a) 

The  office  of  executor  being  a  trust  confided  by 
the  testator,  his  confidence  is  deemed  by  the  law,  an 
adequate  guarrantee  for  the  fulfilment  of  its  duties. 
Hence,  there  is  little  discrimination  of  persons  for 
this  office. 

Bodies  corporate,  aggregate,  or  sole  may  be  execu- 
tors. The  former  being  unable  to  take  the  oath  of  of- 
fice, may  appoint  syndics,  who  receive  letters  of  ad- 

(o)  2  BI.  Com.  503. 


80  WHO  MAY  BE  EXECUTOR.  [BOOK  in. 

ministration  with  the  will  annexed,  and  are  sworn  as 
other  administrators,  (a) 

Aliens,  infants,  and  children  unborn,  may  be  ap- 
pointed executors;  (b)  and  in  the  last  case,  if  the  mo- 
ther be  delivered  of  two  or  more  children,  at  the  birth, 
they  shall  all  be  entitled,  (c) 

A  married  woman  may  be  appointed  executrix, 
but  she  cannot  assume  the  duties  of  the  office  with- 
out the  consent  of  her  husband,  (d)  If  she  be  an  in- 
fant and  her  husband  be  of  age  and  assent,  he  shall 
have  the  execution  of  the  will,  (e) 

And  generally  no  person  is  excluded  by  law  from 
this  office  who  is  not  incompetent  to  administer  it,  by 
reason  of  idiocy,  insanity,  or  fatuity,  arising  from  age, 
disease,  intemperance,  or  the  want  of  eyes  and  ears, 
the  necessary  inlets  of  the  understanding.  (/) 

No  specific  form  of  words  is  necessary  to  the  ap- 
pointment of  an  executor.  It  may  be  express  or  im- 
plied; absolute  or  qualified;  exclusive  or  in  common 
with  others,  (g) 

The  executor  may  be  expressly  nominated  by  a 
written  or  nuncupative  will.  He  may  be  impliedly 
appointed,  by  charging  him  with  those  duties  which 
appertain  to  the  office;  or  by  conferring  upon  him  the 
rights  of  an  executor.  As  if  the  testator  commit  his 
goods  to  the  "  administration  of  A,"  or  "  to  his  dispo- 
sition," or  if  he  make  "  A  lord  of  all  his  goods,"  or 
make  him  "  residuary  legatee,"  or  "  legatory  of  his 
goods,"  in  all  these  cases,  A  shall  be  executor,  (k) 

(a)  1  Roll.  abr.  915.  Swinb.  5,  s.  1.  3  (d)  2  Bl.  Com.  503.  Off.  of  Ex.  203. 

Bac.  abr.  5,  11.  Vin.  abr.  140.  (e)  Off.  et  Ex.  215. 

Godolph  8.  a.  3  Bac.  ab.  5.  (/)  Toll.  Ex.  33.  3  Bac.  Abr.  7. 

(6)  Toll.  Ex.  33,  et  seq.  (§•)  Toll.  Ex.  35. 

C)  lb.  14.  (fc)  Toll.  Ex.  35.  Off.  of  Ex.  8. 


CHAP,  i.]  WHAT  IS  A  WILL.  81 

The  appointment  of  the  executor  is  absolute,  when 
his  power  is  unrestricted,  and  its  duration  unlimited: 
It  is  qualified,  either,  as  to  the  time  of  its  commence- 
ment, as  to  its  continuance,  as  to  the  conditions  on 
which  it  may  be  assumed  or  preserved,  and  as  to  the 
quantity  of  property  committed  to  his  care:  as  if  A 
be  appointed  executor  on  his  coming  of  age 5  or  B, 
until  A  come  of  age;  as  if  A  be  appointed,  and  if  he 
will  not  serve,  then  Bj  or  if  A  be  appointed  on  con- 
dition, that  he  give  security  for  the  faithful  perform- 
ance of  his  trust-,  as  if  A  be  appointed  executor  in  re- 
gard to  the  plate,  and  B  of  the  other  chattels  of  the 
testator  j  or  A  executor  in  one  county  and  B  in  ano- 
ther, (a) 

But  where  conditions  are  annexed  to  the  trust,  they 
must  be  consistent  with  the  will,  and  should  relate  to 
something  in  contingency.  And  impossible  contin- 
gencies are  void.  (b)  Where  the  time  for  the  per- 
formance of  the  condition  is  indefinite,  the  executor 
has  his  whole  life  to  perform  it,  unless  the  court  fix  a 
time,  and  then  if  the  executor  perform  it  not,  the 
condition  is  broken  and  his  appointment  void.  But  all 
acts  done  by  the  executor  before  the  termination  of 
his  authority  are  good,  (c) 

Lastly  an  executor  may  be  appointed  solely;  or  in 
conjunction  with  others;  but  in  the  latter  case,  they  are 
all  considered  by  the  law,  in  the  light  of  an,  individual 
person,  (d) 

(a)  Toll.  Ex.  36.  Off.  of  Ex.  10—12.     (c)  Godolph  77.  78.  Bac.  ab.  lit.  Ex. 
(6)  Godolph  43,  Bac.  ab.  tit.  Ex.        (d)  Bac.    Ab,  tit.  Ex.  Toll.  37. 


$2  OF  ACCEPTANCE  AND  REFUSAL.      [BOOK  HI. 

SECTION  II. 

Of  acceptance  and  refusal,  by  Executor. 

The  executor  may  accept  or  refuse  the  office,  but 
he  cannot  assign  it.  (a) 

If  he  delay  to  prove  the  will,  and  to  determine  his 
election,  he  may  be  cited  to  appear  by  the  register 
under  the  statJJl,  Hen.  VIII.  c.  5.  by  which,  in  Eng- 
land, he  is  liable^  be  excommunicated,  for  neglect 
or  refusal.  Here  if  he  do  not  appear  or  show  cause 
for  his  non-appearance,  he  is  considered  as  having  re- 
fused the  office,  and  letters  of  administration,  with  the 
will  annexed,  are  granted,  (b)  But  this  presumption 
is  not  conclusive  on  the  executor,  for  it  is  settled,  that 
at  any  future  time  he  may  come  in  and  prove  the 
will,  (c) 

The  register  is  the  judge  of  the  proper  time  to 
prove  the  will;  and  regularly  it  should  be  done  within 
four  months  after  the  death  of  the  testator,  (d) 

The  executor  may  renounce  in  person,  by  proxy, 
or  by  letter,  (c)  But  if  he  refuse  he  must  refuse  en- 
tirely: He  cannot  elect  to  administer  to  part  of  the 
estate,  and  refuse  as  to  other  parts.  (/) 

His  renunciation  binds  him  during  the  life  of  the 
administrator,  with  the  will  annexed,  but  it  may  be 
retracted  upon  the  death  of  such  administrator,  (g) 

The  acceptance  of  the  trust  by  the  executor  may 
be  determined  by  his  appearance  before  the  regis- 
ter, proving  the  will  and  taking  the  usual  oath;  (h)  or 

(a)  Toll.  Ex.  41.  Bac.  Ab.  tit.  Ex.  (?)  Crok.  Eliz.  Off.  Ex.  37. 

E.  (/)  1  Salk.  297.  Toll.  Ex.  42. 

(6)  2  Bl.  Com.  504.  Toll.   Ex.  93.  (g-)  Off.  Ex.  40.  Toll.  Ex.  43.  Swia. 
(c)  Off.  Ex.  38.  Com.  Dig.  admin'rs.         6  s.  12.  Bac.  Ab.  tit.  Ex.  E. 

(d)Godolph.    61.  Swin.  p.   447.  4  (h)  Swin.  6  s.  12.  1  Vent.  335. 

Burns,  EC.  L.  169. 


«HAP.  i.]         REVOCATION  OF  LETTER^,  &c.  gg 

by  his  performance  of  such  acts  as  belong  to  the 
character  of  an  executor,  (a)  And  if  he  have  inter- 
meddled with  the  estate,  yet,  refuse  before  the  regis- 
ter, and  administration  be  granted,  it  has  been  held 
that  the  letters  of  administration  may  be  revoked, 
and  he  may  be  considered  as  executor.  (b) 

If  there  be  several  executors  they  must  all  renounce 
before  administration  with  the  will  annexed  can  be 
granted,  (c)  If  some  of  them  renounce  before  the  or- 
dinary, and  the  rest  prove  the  will,  the  renunciation  is 
not  conclusive.  Those  who  refused,  may  at  any  subse- 
quent time,  come  in  and  administer-,  and  although 
they  never  acted  during  the  life,  they  may  assume 
the  execution  of  the  will  after  the  death  of  their  co- 
executors,  and  shall  be  preferred  before  an  executor 
appointed  by  any  of  them,  (d)  And  if  administration 
be  committed  before  refusal  by  the  surviving  executor 
such  administration  will  be  void,  (e) 

SECTION  III. 

Revocation  of  letters  testamentary. 
Formerly  if  an  executor  took  upon  himself  the 
adminstration,  he  could  not  afterwards  devest  himself 
of  the  office,  but  was  compellable  to  perform  it.  (/) 
But  by  the  act  of  fourth  April,  1797,  Sec.  3,  (g)  an 
executor  or  administrator  may  with  the  leave  of  the 
register's,  or  Orphan's  Court,  make  a  settlement  of 

(a)  Bac.   ab.  tit.  Ex.  E.  Roll,  ab  Atk.  239,  3  Pr.  Wras.  251.  Off. 

971.  Ex.  41.  2.  Burr.  1463.  1  Bl.  Rep. 

(fc)  Off.  Ex.  38.  456.  1 1  Viu.  Ab.  55. 

(c)  Roll.  Abr.  907.  Bac.  Ab.  tit.  (e)  Salk.  308. 

Ex.  E.  (/)  Swin.  b.  s.  12.  1  Vent.  335.  1 1 

(d)  Toll.  Ex.  46. 5  Co.  28.  9  Co.  36         Vin.  ab.  207.  Off.  of  Ex.  40.  41. 
b.  Dyer  160,  Salk.  311.  pi.  15.  3     (g)3  Sm.  L.  "297. 


84  -REVOCATION  OF  '•          [BOOK  HI. 

his  accounts,  so  far  as  he  shall  have  administered  the 
estate,  of  his  decedent,  and  be  dismissed  from  his 
office,  surrendering  the  residue  of  the  estate  to  such 
persons  as  the  court  may  appoint.  But  the  court 
will  not  dismiss  an  executor  or  administrator  on  his 
petition  to  be  discharged,  without  first  appointing  au- 
ditors to  ascertain  the  state  of  the  trust;  even  though 
he  swear  he  has  received  no  money,  nor  in  any  way 
administered  to  the  estate.  («) 

By  the  law  as  we  derived  it  from  England,  the 
letters  testamentary  could  not  be  revoked,  even  in 
case  of  the  insolvency  of  the  executor;  nor  could  the 
executor  be  compelled  to  give  security  for  the  faith- 
ful performance  of  his  duty.  "  For,"  in  the  language 
of  Holt,  C.  J.  "  when  a  man  is  made  executor,  no 
body  can  add  qualifications  to  him,  other  than  those 
the  testator  has  imposed,  but  he  shall  be  who,  and  in 
what  manner  the  testator  shall  judge  proper.  (6)  But 
our  legislature,  wisely  considering  that  the  interests 
of  creditors,  legatees  and  distributees,  should  not  be 
irremediably  put  to  hazard,  by  the  confidence  of  the 
testator  in  his  representative;  and  that  the  integrity 
of  the.  executor  might  not  always  resist  temptation  to 
abuse  his  trust,  has  provided  the  means  of  protection 
against  his  malversation. 

By  the  act  of  assembly  1713,  (c)  Sec.  3,  if  an  ex- 
ecutrix having  minors  of  her  own,  or  being  concerned 
for  others,  is  married,  or  likely  to  be  married,  not  hav 
ing  secured  the  minor's  portions  or  estates;  or  if  an  ex- 
ecutor, or  other  person,  having  the  care  and  trust  of 

(a)  Thos.  Bulkly's  case,  I.Browne,     (6)  Ld.  Raym.  361. 
289.  (c)  1  Stn.  L.  83. 


OHAP.  i.]  LETTERS  TESTAMENTARY.  85 

minor's  estates,  is  likely  to  prove  insolvent;  or  shall  re- 
fuse or  neglect  to  exhibit  a  true  and  perfect  invento- 
ry, or  to  give  a  .full  and  just  account  of  the  estates 
come  to  his  hand,  or  knowledge;  the  Orphan's  Court 
is  required  forthwith,  to  cause  such  executors  to  give 
security  to  the  orphans  or  minors,  by  mortgage  or 
bond,  in  such  sums  and  with  such  sureties  as  the  court 
shall  think  reasonable,  conditioned  for  the  perform- 
ance of  their  trusts,  and  for  the  payment  or  delivery, 
to  and  for  the  use  and  behoof  of  such  orphans  as  they 
are  concerned  for,  or  such  as  shall  legally  represent 
them,  the  legacies,  portions,  shares  and  dividends  of 
estates,  real  or  personal,  belonging  to  such  orphans 
or  minors,  so  far  as  they  have  assets,  as  also  for  their 
maintenance  and  education,  as  the  said  court  shall 
think  fit  to  order,  for  the  benefit  and  best  advantage 
of  such  orphan. 

By  this  act,  a  preventive  against  the  malversation 
of  the  executor  was  given  to  the  orphan  or  minor 
only.  The  creditors  and  legatees  had  not  the  means 
to  protect  themselves,  until  the  passage  of  the  act  of 
fourth  April,  1797.  The  first  section  of  which,  pro. 
vides,  that,  when  any  legatee,  creditor,  or  person  in- 
terested in  the  real  or  personal  estate  of  the  testator, 
shall  declare  on  oath,  that  he  has  sufficient  cause  to 
believe,  that  the  executor,  or  the  administrator  with 
the  will  annexed,  is  wasting  or  mismanaging  the  es- 
tate of  the  decedent,  and  shall  apply  for  security  to 
the  Orphan's  Court,  the  court,  on  finding  the  cause 
of  complaint  to  be  just,  shall  order  him  to  give  suffi- 
cient bond,  with  sureties,  to  the  commonwealth,  ac- 
cording to  the  value  of  the  estate:  That  such  bond 


86  LETTERS  TESTAMENTARY.          [BOOK  m. 

shall  be  filed  in  the  Orphan's  Court,  and  shall  be  in 
trust  for  all  persons  interested  in  the  estate,  whether 
as  legatees,  legal  representatives,  or  creditors,  (a) 
And  in  case  such  executor  shall  refuse  or  neglect, 
for  the  space  of  thirty  days,  after  due  notice  of  such 
order,  to  give  the  security  required,  the  court  shall 
vacate  the  letters  testamentary,  and  award  new  ones, 
to  be  issued  by  the  register,  to  such  persons  and  upon 
such  security,  as  the  court  shall  think  proper;  and 
shall  order  the  executor,  to  deliver  over  and  pay 
to  his  successor,  all  the  chattels,  rights,  credits,  title 
deeds,  evidences,  and  securities  which  were  of  the 
decedent,  and  remain  unadministered;  and  to  account 
with  him,  for  the  estate  previously  administered,  and 
to  pay  over  to  him,  the  balance  which  may  be  due, 
in  such  manner  and  time,  as  the  court  upon  an  exami- 
nation and  confirmation  of  such  account  (to  be  had 
according  to  the  usual  course  of  proceeding  in  case 
of  accounts  of  executors  and  administrators  settled  in 
such  court)  shall  award  and  order.  And  if  the  su- 
perseded executor  shall  neglect  or  refuse  to  comply 
with  the  order  of  the  court,  touching  the  premises,  the 
court,  on  motion,  shall  proceed  against  him,  as  for 
contempt,  or  the  succeeding  administrator  may  pro- 
ceed against  him  or  his  sureties,  if  any,  at  law,  or 
against  any  person  having  property  of  the  decedent; 
or  both  the  remedies  may  be  pursued  at  the  same 
time,  if  the  case  require  it,  until  the  end  be  fully  at- 
tained, (b) 

i 

(a)  3  Sm.  L.  296.  (6)  Ibid. 


OHAP.  i.]     OF  THE  EXECUTOR  DE  SON  TORT.  87 

SECTION  IV. 

Of  the  executor  de  son  tort. 

An  executor  de  son  tort  is  one,  who  deriving  no  au- 
thority from  the^stator,  assumes  the  office,  by  his 
own  intrusiodFaua  interference,  (a) 

One  may  become  executor  de  son  tort  by  the  com- 
mission of  various  acts;  such  as  taking  possession  of,  and 
converting  the  assets  to  his  own  use;  (6)  paying  the  de- 
ceased's mortgages  or  other  debts,  or  legacies,  out  of 
them; suing  for,  receiving  or  releasing,  the  debts  due  to 
the  estate;  (c)  living  in  the  house  and  carrying  on  the 
trade  of  the  deceased;  (d)  seizing  a  specific  legacy 
without  the  assent  of  the  lawful  executor;  (e)  enter- 
ing on  a  lease  or  term  for  years;  (/)  answering  in  the 
character  of  an  executor  to  any  action  brought  against 
him,  or  pleading  any  other  plea,  than  "  never  exec- 
utor."^) And  all  other  acts  of  a  similar  nature,  how- 
ever slight,  (h)  may  have  the  same  consequence;  as  in 
one  case,  merely  taking  a  bible,  and  in  another  a 
bedstead,  (i)  were  held  sufficient,  inasmuch  as  they 
are  the  indicia  of  the  person  so  interfering,  being  the 
representative  of  the  deceased. 

And  where  A,  the  servant  of  B,  sold  goods  of  C,  an 
intestate,  both  before  and  after  CTs  death,  in  conse- 
quence of  orders  given  by  C,  in  his  life  time,  and  paid 
the  money  arising  from  such  sale  into  the  hands  of 
B:  and  D  had  also,  in  the  capacity  of  a  servant  sold 
other  goods  of  the  intestate;  on  an  action  brought 
against  B  and  D  as  executors,  for  a  debt  due  from  the 

(a)  Off.  Ex.  172.  2  Bl.  Com.  507.  (e)  Bac.  ab.  tit.  Ex.  Godolp.  91. 

(6)  Off.  Ex.  172.  11  Vin.  ab.  210,  (/)Swin.  6,  s.  22. 

211.  (£)  Bac.  ab  tit.  Ex.  Godolph.92. 

(c)  Swin.  6,  s.  22,  n-  2,  Dyer,  105.  (A) 2  T.  Rep.  100. 

(d)  Toll.  Ex.  39.  (t)  Carth.  166. 


88  OF  THE  EXECUTOR  DE  SON  TORT- ,   [BOOK  in. 

| 
deceased,  they  not  having  discharged  themselves,  by 

the  payment  of  the  money  which  they  had  respec- 
tively received,  to  the  rightful  administrator,  at  the 
time  when  the  action  was  commencBdy  nor  even 
when  they  pleaded,  were  both  adjuwtel* liable  as  ex- 
ecutors of  their  own  wrong,  (a) 

So,  where  a  creditor  took  an  absolute  bill  of  sale 
of  the  goods  of  the  debtor,  but  agreed  to  leave  them 
in  his  possession  for  a  limited  time,  before  the  expi- 
ration of  which,  the  debtor  died,  and  the  creditor  took 
and  sold  the  goods;  he  was  held  liable  to  the  extent 
of  their  value,  as  executor  de  son  tort,  for  the  debts  of 
the  deceased.  (6) 

But  there  are  many  acts  which  a  stranger  may 
perform  without  incuring  the  hazard  of  being  involv- 
ed in  such  an  executorship;  such  as  loddng  up  the 
goods;  directing  the  funeral,  in  a  manner  suitable  to 
the  estate  which  is  left;  and  defraying  the  expense 
himself,  or  out  of  the  deceased's  effects;  (c)  making 
an  inventory  of  his  property;  (d)  advancing  money  to 
pay  his  debts  and  legacies;  (e)  feeding  his  cattle;  re- 
pairing his  houses;  and  providing  necessaries  for  his 
children.  For,  these  are  offices  merely  of  kindness 
and  charity. 

Generally  speaking  there  cannot  be  such  an  exec- 
utor when  there  is  a  rightful  one,  or  where  adminis- 
tration has  been  duly'granted.  For,  if  after  probate  of 
the  will  or  administration  granted,  a  stranger  take 
possession  of  the  property,  he  may  be  sued  as  a  tres- 
passer by  the  executor  or  administrator;  but  it  is 

(a)  2  T.  Rep.  97.  No.  2. 2  Bl.  Com.  507. 

(6)  2  T.  R.  587.  (d)  Ibid. 

-(c)  Off.  Ex.  174.  Swinb.  6,  s.  22,  (e)  Godolp.  92. 


GHAP.  i.]      OF  THE  EXECUTOR  DE  SON  TORT.  89 

otherwise,  if,  after  taking  such  possession,  he  claims 
to  be  executor,  pays  or  receives  debts,  or  pays  lega- 
cies, or  otherwise  intermeddles  in  that  character,  (a) 

Whether  a  man  have  made  himself  such  an  execu- 
tor, is  a  question  not  to  be  left  to  a  jury,  but  is  a  con- 
clusion of  law,  resulting  from  the  facts  established  in 
evidence.  (6) 

An  executor  de  son  tort  has  no  interest  whatever 
in  the  property,  and  therefore  can  maintain  no  action 
in  right  of  the  deceased,  (e) 

But  if  he  administer,  his  wrong  will  be  qualified, 
and  an  interest  similar  to  that  of  other  administrators 
will  vest  in  him,  and  have  relation  to  the  time  of  the 
intestate's  death,  (d)  And  though  such  administration 
be  committed  to  him  pendente  lite  only,  it  will  warrant 
the  retainer  of  his  own  debt,  (e) 

And  though  such  executor  do  not  administer,  he 
may  do  many  acts,  which  shall  be  as  binding  as  those 
of  a  lawful  executor,  (f)  As  against  creditors  he  is 
justified  in  paying  the  debts  of  the  deceased,  and  in- 
deed may  be  compelled  to  pay  them  so  far  as  assets 
come  to  his  hands;  (g)  and  to  an  action  brought  against 
him  by  a  creditor  he  may  plead  plene  administravit.  (h) 

But  if  the  rightful  representative  pursue  his  legal 
remedy  against  him,  he  has  no  defence;  as  if  it  be, 
by  action  of  trover  for  the  goods  of  the  testator,  the 
executor  de  son  tort  cannot  plead  payment  of  debts  to 

(o)  Bac.  ab.   tit.  Ex.  5  Co.  33.  b.  (e)  Com.  Dig.  Adm.  C.  3.  2  Vent. 

Salk.313.  pi.  19.  180. 

(6)  2  T.  Rep.  99.  (/)  Bac.  Abr.  tit.  Ex.  Off.  Ex.  180. 

(c)  11  Vio.  ab.  215.  12  Mod.  471.  2  (g-)  Off.  Ex.   181,  182.  2  Bl.  Com. 
Bl.  Com.  507.  507.  Dyer  166,  b. 

(d)  11  Vin.  ab.  215.  12  Mod.  471.     (A)  Bac.  Ab.  tit.  Ex.  5  Co.  30,  Off. 
3  T.  Rep.  590.  Toll.  Ex.  244.  Ex.  181,  C'arth.  104,  Sid-  76. 

M 


90  OF  THE  EXECUTOR  DE  SON  TORT.    [BOOK  HI. 

the  value,  (a)  Yet  on  the  general  issue  pleaded,  he 
may  give  in  evidence  such  payments,  and  they  shall 
be  deducted  from  the  damages;  (6)  or  if  they  amount 
to  the  full  value,  the  plaintiff  shall  be  nonsuited,  (c) 
But  it  is  doubted,  whether,  in  such  action  the  defend- 
ant can  give  in  evidence  payment  of  debts  to  the  va- 
lue of  such  goods  as  are  in  his  custody,  (d)  If  the 
action  be  trespass  instead  of  trover,  payment  of  the 
debts  to  the  value  will  go  only  in  mitigation  of 
damages,  and  the  plaintiff  will  be  entitled  to  a  ver- 
dict. 

The  ground  of  the  distinction  seems  to  be  this:  in 
trover  his  possession  is  admitted  to  have  been  lawful, 
and  the  subsequent  distribution  negatives  the  con- 
version: but  in  trespass  the  unlawful  taking  is  the 
subject  matter  of  complaint,  to  which  the  distribution 
is  not  an  answer,  (e) 

The  executor  de  son  tort  cannot  derive  any  advan- 
tage from  the  character  he  has  wrongfully  assu- 
med. He  is  not  entitled  to  bring  an  action  in  the 
right  of  t  he  deceased;  (/)  nor  is  he  empowered  to  re- 
tain in  satisfaction  of  his  own  debt;  for  such  a  privi- 
lege would  tend  to  encourage  a  competition  of  credi- 
tors, who  should  first  take  possession  of  the  testator's 
effects  without  legal  authority,  (g) 

Nor  after  an  action  brought  against  him  by  a  credi- 
tor, can  he  avail  himself  of  a  delivery  over,  of  the  ef- 
fects to  the  rightful  administrator  though  before  the 
filing  of  the  plea,  nor  of  the  assent  of  the  administra- 

(a)  Toll.  Ex.  365.  (e)  Toll.  Ex.  365. 

(6)  2  Bl.  Com.  508.  Toll.  Ex.  366.  (/)  2  Bl  Com.  507. 

(c)  L.  of Ni.  Pri.  48.  (g)  2  Bl.  Com-  511. 

(d)  fl>.  12  Mod.  471. 


OHAP.  i.]     OF  THE  EXECUTOR  DE  SON  TORT.  91 

tor  to  his  retainer  of  his  debt.  Nor  is  the  case  varied, 
although  in  point  of  fact,  no  administration  were 
granted  at  the  time  of  the  commencement  of  such 
swt,  and  the  defendant  without  delay  relinquished 
the  property  to  the  grantee,  (a) 

If  the  executor  de  son  tort  deliver  the  effects  to 
the  administrator,  before  such  action  brought,  that  is 
a  sufficient  defence,  and  he  may  give  it  in  evidence 
under  the  plea  of  plene  administravit.  (b) 

An  executor  de  son  toi*t  is  liable  to  the  action  of  the 
lawful  executor  or  administrator,  or  to  that  of  a  credi- 
tor; and  in  the  latter  case  may  be  charged  as  executor 
generally,  (c)  If  there  be  also  a  lawful  executor, 
they  may  be  joined  in  an  action  by  a  creditor,  or  sued 
severally,  but  it  is  otherwise,  if  there  be  a  lawful  ad- 
ministrator; he  cannot  be  so  joined  with  an  executor 
de  son  tort,  (d)  If  a  creditor  take  out  administration, 
he  may  recover  his  debt  against  him,  who  before  the 
grant,  was  executor  de  son  tort,  as  well  as  the  goods 
of  the  intestate  taken  and  converted  previously  to 
the  grant,  (c)  And  if  a  person  act  under  a  power  of 
attorney  from  one  of  several  executors  who  has  prov- 
ed the  will,  although  he  cannot  be  charged  as  execu- 
tor de  son  tort  during  the  life  of  such  executor,  yet  if 
he  continue  to  act  after  the  death  of  such  executor,  he 
may  be  charged  as  executor  de  son  tort,  though  he  act 
under  the  advice  of  another  of  the  executors,  who  has 
not  proved  the  will.  (/) 

If  an  executor  de  son  tort  commit  waste,  or  any 

(a)  3  T.  Rep.  587.  (d)  Off.  Ex.  176. 

(ft)  1  Salk.  313.  (e)  Com.  Dig.  Adm.  C.  3.  Str.  34B. 

(c)  Com.  Dig    adm.  C-  1.  Off.  Ex.     (/)  4  Maul  &  SeJ.  175. 
177,  5  Co.  31. 


92  OF  THE  EXECUTOR  DE  SON  TORT.    [BOOK  in. 

other  species  of  devastavit;  or  plead  ne  unques  execu 
tor,  and  it  be  found  against  him,  he  shall  be  charged 
as  another  executor  de  bonis  propriis.  (a)  But  in  gene- 
ral he  is  liable  only  to  the  amount  of  assets  which 
come  to  his  hands.  (6) 

At  the  common  law,  executors  or  administrators 
were  not  considered  liable  for  the  devastavit  of  those 
whom  they  represented-,  because  they  could  not  be 
supposed  to  know,  how  the  testator  or  intestate  had 
disposed  of  his  goods 5  and  therefore  this  was  esteemed 
a  personal  action  which  died  with  the  person,  (c)  This 
inconvenience  was  removed  by  the  statute,  30  Char. 
II.  c.  7,  made  perpetual  by  4  and  5  W.  and  M.  c.  24. 
(d)  Providing,  that  all  and  every,  the  executors  and 
administrators  of  any  person  or  persons  who  as  execu- 
tor or  executors  in  his  or  their  own  wrong,  or  adminis- 
trators shall  waste  or  convert  any  goods,  chattels,  es- 
tate'or  assets  of  any  person  deceased,  to  their  own  use, 
shall  be  liable  and  chargeable  in  the  same  manner  as 
their  testator  or  intestate  would  have  been  if  he  had 
been  living. 

The  words  of  the  statute,  30  Chas.  II.  not  only  in- 
clude executors  or  administrators  of  executors  in  their 
own  wrong,  but  have  been  construed  to  extend  to  the 
executors  or  administrators  of  rightful  executors,  (e) 
and  the  executors  and  administrators  of  rightful  ex- 
ecutors are  embraced  by  the  statute  4  and  5,  W.  and 
M.  ch.  24.  (/) 

But  it  seems  an  executor  de  son  tort  of  an  executor 
de  son  tort,  is  not  liable  for  a  devastavit  committed  by 

(a)  Off.  Ex.  157.  (e)  3  Mod.  113. 

(b)  Dyer  166.  b.  n.  11.  (/)  Allen  v.  Irwin.   1  Sergt.  &  R, 

(c)  3  Mod.  113.  554. 

(d)  Rob.  Dig.  258. 


OKA*,  i.]  POWER  OF  EXECUTOR,  93 

such  first  executor,  either  at  common  law,  or  by  ei- 
ther of  the  two  last  mentioned  statutes,  (a) 

SECTION  v. 
Of  the  power  of  the  executor  before  probate. 

The  interest  of  the  executor  is  completely  vested 
by  the  death  of  his  testator,  and  he  may  before  pro- 
bate do  almost  every  act  which  is  incident  to  his  of- 
fice, (b)  He  may  conduct  the  funeral;  make  an  in- 
ventory and  possess  himself  of  his  testator's  effects;  (c) 
enter  peaceably  into  the  house  of  the  heir,  to  take 
the  evidences  of  the  debts  due  to  the  deceased,  or  re- 
move his  goods;  (d)  he  may  pay  or  release  debts  due 
from  or  to  the  estate  of  the  decedent;  (e)  he  may  assent 
to  and  pay  legacies;  he  may  dispose  at  his  discretion 
of  the  chattels  of  the  testator;  enter  on  the  testator's 
terms  for  years;  (/)  he  may  commence  actions  in  right 
of  the  testator,  as  for  trespass  committed,  or  goods 
taken,  or  on  a  contract  made  in  the  testator's  life  time; 
but  it  is  doubtful  whether  he  can  declare  before  pro- 
bate;^*) he  may  arrest  a  debtor,  and  generally  maintain 
such  actions  in  his  own  name  and  as  executor,  as  he. 
may  after  probate,  (h) 

On  the  other  hand,  if  he  have  elected  to  administer, 
he  may  also  before  probate,  be  sued  by  the  creditors 
of  the  decedent;  who  should  not  be  impeded  by  his 
delay,  and  to  whom,  as  executor  de  jure  or  de  facto  he 
has  made  himself  responsible,  (i) 

(o)  Com.  Dig.  Adra.  13  Toll.  Ex.  (e)  Off.  Ex.  34. 

474.  (/)  11  Vin.  ab.  203. 

(6)  Com.  Dig.  Adm.  Bq.  Plowd.  (g)  Bac.  ab.  tit.  Ex.  Toll.  Ex.  47. 

280.  1  T.  R.  480.  Toll.  Ex.  47.  Contra, 

(c)  Off.  Ex.  34.  th)  Off.  Ex.  Toll.  Ex.  47. 

(d)Ib.  v»)0ff.  Ex.  37. 


94  ADMINISTRATION  WHAT.  [BOOK  in. 

If  an  executor  die  before  probate,  he  is  considered 
in  law  as  intestate  in  regard  to  the  executorship,  al- 
though he  have  made  a  will  and  appointed  executors-, 
and  although  he  die  after  taking  the  oath,  if  before  the 
passage  of  the  grant,  (a) 


CHAPTER  II. 

ADMINISTRATION  WHAT HOW  MANY  KINDS — WHO  MAY 

BE  AN  ADMINISTRATOR — HOW  GRANTED. 

SECTION   I. 

Administration  what. 

Administration  may  be  defined,  the  distribution  of 
the  estate  of  an  intestate  decedent  among  his  credi- 
tors and  representatives  according  to  law.  The  officer 
charged  with  such  distribution  is  called  an  administra- 
tor. (6) 

In  England  this  office  belonged  originally  to  the 
king  as  the  father  of  his  people;  by  him  it  was  vested 
in  the  prelates  whose  supposed  sanctity  of  morals, 
and  devotion  to  the  duties  of  humanity,  was  believed 
to  fit  them  in  a  peculiar  manner  for  its  exercise.  Two 
thirds  of  the  intestate's  estate  were  allotted  to  his  wi- 
dow and  children,  or  to  his  next  of  kin,  and  the  re- 
mainder was  distributed  by  the  ordinary  at  his  pleasure 
in  pious  uses.  But  the  assumption  of  the  clerical  cha- 
racter did  not  always  give  honesty  or  wisdom.  The 
residue  was  appropriated  to  the  exclusive  use  of  the 
ordinary,  under  the  pretence  of  maintaining  the 

(a)  Off.  Ex.  Supp.  74, 76,  182.  (b)  Toll.  Ex.  8 1 . 


OHAP.  ii.]          KIND  OF  ADMINISTRATION.  95 

church  and  the  poor,  without  regard  to  the  rights  of 
the  decedent's  creditors.  The  legislature  remedied 
this  crying  injustice,  by  compelling  the  ordinary  to 
appoint  the  nearest  friend  of  the  deceased,  to  admin- 
ister his  goods,  first  in  the  payment  of  the  intestate's 
debts,  and  the  balance,  if  any,  to  the  use  of  his  kin- 
dred, (a) 

Our  forefathers  at  the  settlement  of  the  province 
had  to  supply  the  place  of  the  ordinary:  and  the  pow- 
er to  appoint  an  officer,  to  make  probate  of  wills,  and 
grant  letters  of  administration  was  expressly  given  to 
William  Penn  by  the  charter  of  Charles  II.  We  have 
already  shown,  in  what  manner  the  office  for  the  pro- 
bate of  wills  and  granting  of  administration,  has  been 
established,  in  treating  of  the  nature  of  probate. 

SECTION  II. 

Of  the  several  kinds 

Administration  is  either  general  or  special.  Gen- 
eral when  it  is  unlimited  as  to  duration,  and  is  of 
the  whole  of  the  intestate's  estate.  Special  when 
limited,  either  as  to  time,  or  as  to  the  quantity  of  the 
intestate's  estate.  \ 

Limited  administrations  are,  1.  tyiirante  minoritate, 
or  during  minority;  2.  Durante  absentia,  or  during  ab- 
sence; 3.  Pendente  lite,  or  pending  suit;  4.  De  bonis 
non  administratis,  or  of  goods  not  administered,  by  a 
prior  administrator. 

1.  Administration  during  minority,  may  be,  either 
during  the  minority  of  an  executor  or  of  an  administra- 
tor. (6)  In  the  former  case  it  continues  till  the  executor 

(a)  Toll.  Ex.  82.  (6)  Toll.  Ex.  100. 


96  KINDS  OF  ADMINISTRATION.         [BOOK  HI. 

attain  the  age  of  seventeen,  in  the  latter,  until  the  ad- 
ministrator attain  the  age  of  twenty-one  years:  in  the 
former,  the  powers  and  duty  of  the  administrator  are 
determined  by  the  will;  in  the  latter  by  the  law. 

If  administration  be  granted  to  a  guardian  for  the 
use  of  several  infants,  it  ceases  on  the  eldest  attaining 
legal  age,  to  assume  the  duties  of  the  office,  (a) 

If  there  be  several  infant  executors,  he  who  first 
attains  the  competent  age,  shall  prove  the  will,  and 
the  administration  shall  cease;  (6)  but  administration 
granted  during  the  minority  of  several  children  will 
not  expire  on  the  marriage  of  one  of  them  of  full  age. 
(c)  Nor  if  an  infant  be  executrix,  shall  it  be  deter- 
mined by  her  taking  a  husband  who  is  of  age,  nor,  if 
there  be  several  infants  by  the  death  of  one  of  them. 

(d) 

If  there  be  two  executors,  one  of  whom  has  attain- 
ed the  competent  age,  and  the  other  not,  administra- 
tion shall  not  be  granted  during  the  minority  of  him 
who  is  under  age,  because  the  former  may  execute 
the  will,  (e) 

2.  Administration  during  absence  of  the  executor, 
or  next  of  kin  may  be  gran  ted ;  and  it  ceases  of  course 
on  the  appearance  of  the  party  for  whose  absence  it 
is  granted,  and  his  taking  out  probate  or  administra- 
tion^/) 

So  if  the  executor  named  in  the  will,  be  unknown 
or  concealed,  administration  may  be  granted  until  he 
appear  and  claim  probate,  (g) 

(«)  Toll.  Ex.  101.  (c)  4  Burn.  EC.  L.  240.  1  Brounl. 
(6)  4  Burn.  EC.  L.  218.  L.  of  Test.  46.  Toll.  Ex.  102. 

473, 474.  (/)  Roll.  ab.  907.  Lutw.  842.  Salk. 
(c)  3  Pr.  Wms.  79.  42.  Toll.  Ex.  104. 

(rf)  Ib.  sed.  vid.  Com.  Dig.  Adm.  (§•)  Roll.  ib.  4  Burn.  EC.  L.  202. 

(F.)&5Co.29.  (b.) 


OHAP.  ii.]         KINDS  OF  ADMINISTRATION.  97 

:  «    y 

3.  Administration  pending  suit,  is  granted,  where 
the  will,  or  the  right  to  administration  is  contested: 
It  ceases  on  the  termination  of  the  suit,  (a)  But  such 
administration  is  never  granted  until  a  plea  in  the 
cause  has  been  given  in  and  admitted.  (6)     The  ad- 
ministrator has  no  power  to  make  distribution  of  the 
estate  5  but  if  he  distribute  it  according  to  law,  the 
court  will  not  compel  him  to  refund,  that  his  succes- 
sor may  pay  to  the  same  person,  (c) 

4.  Administration  de  bonis  non  or  of  the  goods  of 

o 

the  deceased,  left  unadministered  by  the  former  ex- 
ecutor or  administrator,  is  granted  on  the  death  or 
dismissal  of  an  executor  or  administrator;  and  the 
grantee  becomes  the  only  personal  representative  of 
the  party  originally  deceased,  (d) 

By  the  act  of  twelfth  March,  1800,  (e)  the  admin- 
istrator de  bonis  non  may  execute  the  powers  given 
by  any  last  will  or  testament,  as  fully,  as  if  all  the 
executors  named,  had  joined  therein,  unless  the  tes- 
tator have  by  his  will  directed  otherwise. 

And  where  an  administrator  sells  the  estate  of  the 
intestate,  or  any  part  thereof,  under  an  order  of  the 
Orphan's  Court,  and  dies  before  deed  made,  the  ad- 
ministrator de  bonis  non,  may  convey  such  estate  to 
the  purchaser.  (/) 

And  by  the  act  of  twelfth  March,  1804,  (g)  he  may 
convey  lands  and  tenements,  contracted  for,  with  his 
decedent,  as  the  executor  or  administrator  in  the  first 

(a)  4  Burn.  EC-  L.  200.  (e)  3  Sm.  L.  434. 

(6)  Toll.  Ex.  103.  (/)  Act.   2  Apr.  1802.   3  Sm.  L 
(c)  1  Browne  R.87.  Bradford's  case.         500. 

(</)  11  Vin.  ab.  111.  2  Pr.  Wms.  (ff)4Sro.  L.  15$. 
340.  Toll.Ex.,117 


98  KINDS  OF  ADMINISTRATION.          [BOOK  m. 

instance  may  do,  under  the  act  of  thirty-first  March, 
1792. 

An  administrator  de  fronts  won  cannot  maintain  as- 
sumpsit,  against  the  administrators  of  the  executor  of 
his  decedent,  for  money  had  and  received  by  such  ex- 
ecutor to  the  use  of  the  administrator  de  bonis  non.  (a) 
For  there  is  no  privity  between  the  executor  and  the  ad- 
ministrator de  bonis  non,  who  is  entitled  only  to  such 
goods  and  chattels  of  the  testator  as  remained  in  specie 
in  the  hands  of  the  executor  at  the  time  of  his  death,  or 
to  such  money  as  belonged  to  the  testator's  estate,  and 
had  been  kept  by  the  executor,  separate  and  unmixed 
with  his  own.  In  all  other  cases  the  property  is  con- 
sidered as  vested  in  the  executor  and  cannot  be  re- 
covered in  any  form  of  action  by  the  administrator  de 
bonis  non.  (b) 

But  an  action  will  lie  by  a  creditor,  legatee  or  distri- 
butee, against  the  administrators  of  such  executor,  (c) 

Administration  cum  teslamento  annexo  is  granted  by 
the  register,  when  the  executor  is  dead,  intestate,  has 
renounced,  or  has  been  removed;  or  where  the  exec- 
utor is  incompetent;  or  is  appointed  to  act  at  a  future 
time,  or  where  no  executor  is  named  in  the  will,  (d) 

If  the  executor  die  before  probate,  the  administra- 
tion must  be  granted  to  the  next  of  kin  of  his  testa- 
tor, (e)  But,  if  the  executor  being  residuary  legatee, 
die  after  probate,  administration  must  be  granted  to 
the  next  of  kin  of  the  executor.  (/) 

If  administration  be  granted  before  probate  it  is  in 
chief,  if  after,  it  is  of  the  goods  unadministered. 

(a)  Allen  v.  Irwin,  1  Serg.  £  R.  549.  92. 

(6)  Ib.  4  Mass.  Rep.  611.  (e)  1  Salk.  308.  Toll.  Ex.  1 15. 

(c)  1  Serg.  &R.  549.  (/)  11  Vin.  Ab.  *87.  Free  Chan, 

(rf)  11  VID.  ab.  111.  Toll.  Ex.  117.  567. 
4  Burn.  EC.  L.  198.  Toll.  Ex.  43. 


CHAP,  ii.]        KINDS  OF  ADMINISTRATION.  99 

If  administration  be  granted  in  consequence  mere- 
ly of  the  executor's  failure  to  appear  on  the  citation  to 
make  probate,  he  may  at  any  future  time,  even  in  the 
administrator's  lifetime,  come  in  and  prove  the  will,  (a) 

But  if  it  be  granted  upon  the  refusal  of  the  execu- 
tor, the  grant  will  be  continued  in  force  during  the 
life  of  the  administrator,  after  whose  death  the  execu- 
tor may  take  out  letters  testamentary.  (b) 

If  one  of  two  executors  prove  the  will  and  die,  and 
the  other  refuse  to  assume  the  office,  such  admin- 
istration shall  be  granted,  (c) 

If  there  be  several  executors  named  in  the  will, 
they  must  all  refuse  or  fail  to  appear  on  citation  pre- 
viously to  the  grant  of  administration,  (d) 

The  authority  of  the  register  to  grant  administration 
with  the  will  annexed,  is  derived  originally  from  the 
statute  21,  Henry  VIII,  cap.  5;  (e)  and  is  confirmed 
by  the  17th  section  of  the  act  of  April,  1798,  (/) 
which  empowers  him  to  grant  such  administration  in 
all  cases,  as  before  the  passage  of  that  act. 

This  species  of  administrator  may  be  appointed  by 
the  Orphan's  Court  in  two  cases,  under  the  provisions 
of  the  act  of  fourth  April,  1797.  (g)  1.  Where  the 
executor  has  been  removed,  on  complaint  of  his  wast- 
ing or  mismanaging  the  estate  of  his  testator,  and  2. 
where  he  has  been  dismissed  on  his  own  petition,  af- 
ter settlement  of  his  accounts.  In  both  cases  such 
administrator  must  give  bond  to  the  register. 

Such  administrator  has  the  powers  of  an  executor 


(a)  Off.  Ex.  30,  Com.  Dig.  Adm.  (d)  Toll.  Ex.  ib. 
B.  4  Toll.  Ex.  44.  (e)  Rob.  Dig.  250. 

(b)  Toll.  Ex.  93.  (/)  3  Sm.  L.  149. 

(c)  1 1  Vin.  ab.  68.  69,  1 14.  1  Salk.  (g)  3  Sm.  L.  296. 
307.  311.  Toll.  Ex.  93. 


100  tVHO  MAY  BE  ADMINISTRATOR.     [BOOK  m. 

under  the  will;  (a)  and  where  there  are  no  executors 
named  in  the  will,  the  same  authority  as  executors: 
(6)  He  may  sell  and  convey  lands  devised  or  direct- 
ed to  be  sold  by  the  will,  and  execute  all  the  powers 
therein  given,  unless  the  testator  direct  otherwise-,  (c) 
and  he  has  equal  powers,  with  executors  and  admin- 
istrators in  the  first  instance,  by  leave  of  court,  to 
convey  lands  and  tenements  contracted  for  with  their 
decedents,  (d) 

SECTION  ni. 
Who  may  be  administrator. 

By  the  statute  31  Edward  III.  cap.  2,  (c)  admin- 
istration is  granted  to  the  ne$t  and  most  lawful  friends 
of  the  deceased;  and  by  the  statute  of  21  Henry, 
VIII.  cap.  5,  (/)  in  which  these  lawful  friends  are 
more  specially  designated,  it  is  provided,  that,  in  case 
any  person  die  intestate,  or  the  executors  named  in 
any  testament  refuse  to  prove  the  said  testament,  the 
ordinary  or  other  person  having  authority  to  take 
probate  of  testament,  shall  grant  the  administration  of 
the  goods  of  the  testator  or  person  deceased,  to  the 
widow,  or  to  the  next  of  kin,  or  to  both,  at  his  discre- 
tion, taking  surety,  for  the  true  administration  of  the 
goods,  chattels  and  debts,  which  he  shall  be  authori- 
zed to  administer.  And  where  two  or  more  persons 
in  the  same  degree  of  kindred,  apply  for  the  adminis- 
tration, the  ordinary  may  elect  which  he  pleases,  or 
may  grant  the  administration  to  several. 

Administration  is  therefore  to  be  granted  to  the 
next  and  most  lawful  friend  or  to  the  widow,  or  to  the 
next  of  kin,  or  both,  of  the  deceased. 

(a)  Toll.  Ex.  92.  (d)  4  Sro.  L.  158.  3  Ib.  66. 

(ft)  Read's  L.  102.  («)  Rob.  Dig.  250. 

(e)  3  Sm.  L.  434.  {/)!*>• 


BHAP.  ii.]     WHO  MAY  BE  ADMINISTRATOR. 

1.  To  the  character  of  next  and  most  lawful  friend 
of  the  deceased  is  referred,  by  some  writers,  the  hus- 
band's right  of  exclusive  administration  to  the  estate 
of  his  deceased  wife;  by  others,  his  right  is  said  to 
arise  from  the  marriage  contract,  and  to  exist  inde- 
pendently of  the  statute.  However  this  may  be,  his 
right  has  been  long  fully  established,  and  is  confirm- 
ed, by  the  act  of  twenty-first  March,  1772,  Sec.  5,  (a) 
which  declares,  "  that  nothing  in  the  intestate  acts 
shall  be  construed  to  extend  to  estates  of  feme  coverts 
that  shall  die  intestate;  but,  that  their  husbands  may 
demand  and  have  administration  of  their  rights,  cre- 
dits and  personal  estates,  and  recover  and  enjoy  the 
same,  as  they  might  have  done  before  the  making  of 
that  act." 

And  so  completely  is  this  right  vested  in  the  hus- 
band, that  if  he  die  before  administration,  his  execu- 
tors or  administrators,  and  not  the  wife's  next  of  kin, 
shall  have  administration  of  her  estate.  (6) 

But  it  is  necessary  for  the  husband  to  administer 
to  his  wife,  only  where  there  is  personal  property 
which  he  has  not  reduced  to  possession  during  her  life. 

w 

This  right  of  the  husband  may  be  controlled  or  va- 
ried, by  the  will  or  appointment  of  the  wife,  where 
she  has  power  to  make  one,  so  far  as  such  will  or  ap- 
pointment extends;  and  administration  will  be  granted 
to  the  devisee  of  the  wife  or  to  the  .person  named  by 
her  as  executor,  (d)  But  the  husband's  right  to  ad- 
minister to  such  parts  of  her  estate,  as  is  undisposed 
of,  remains  unimpaired,  (e) 

(a.-)  \  Sm.  L.  390.  Baron.  &  feme  H. 

(6)  3  Salk.  21.  1  Pr.  Wms.  378.       (d)  4  Burn.  EC.  L.  232.  Strange  IV. 

(c)    Co.  Litt.  300.  Com.  Dig,       (e)  Stra.  391. 


IV. 

Great 
Grand- 
father's 
Father. 


V. 

Son  of 

the  Cousin 

German. 


IV. 

Son  of  the 
Nephew  or 
Brother's 
Grandson. 


III. 

Great 
Grand- 
son. 


CHAF.  n.J       WHO  MAY  BE  ADMINISTRATOR.  103 

2.  Administration  is  to  be  granted  to  the  widow, 
or  next  of  kin  or  to  both,  at  the  discretion  of  the  regis- 
ter; and  he  may  grant  administration  as  to  part,  to  the 
wife,  and  as  to  the  other  part  to  the  next  of  kin.  (a) 
But  the  practice  in  Philadelphia  is  to  grant  full  ad- 
ministration to  the  wife,  if  she  desire  it,  unless  she  be 
incompetent  from  causes  which  disqualify  all  persons 
to  administer. 

3.  The  next  of  kin  are  entitled  to  administration  in 
the  order  of  proximity  to  the  decedent-,  and  where 
several  in  the  same  degree  apply,  an  election  is  to  be 
made  by  the  register. 

Consanguinity  or  kindred  is  the  connexion,  or  re- 
lation of  persons  descended  from  the  same  stock,  or 
common  ancestor.  It  is  either  lineal  or  collateral  (6) 

Lineal  consanguinity  subsists  between  persons  de- 
scended in  a  direct  line  from  each  other-,  as,  between 
gandfather,  father,  son,  and  grandson.  Each  gene- 
ration in  this  line  constitutes  a  degree,  reckoning  up- 
wards or  downwards.  Thus  the  father  and  son  of  A 
is  related  to  him  in  the  first  degree,  his  grandfather 
and  grandson  in  the  second,  &c.  (c) 

Collateral  consanguinity  exits  between  persons  de- 
scended from  the  same  ancestor,  but  not  the  one,  from 
the  other,  (d)  As  if  A  have  two  sons,  who  have  is- 
sue; both  issues  are  lineally  descended  from  A,  and 
are  collateral  kinsmen-,  because  they  are  all  descend- 
ed from  a  common  ancestor,  and  have  a  portion  of  his 
blood  in  their  viens. 

The  degrees  of  kindred  in  the  collateral  line,  arc 
reckoned  according  to  the  civil  law,  by  counting  up- 


o)  Toll.  87.  (c)  2  Bl.  Cora.  20S- 

6)  2  Bl.  Com.  202.  (d)  Ib. 


104  WHO  MAY  BE  ADMINISTRATOR.    [BOOK  m. 

wards,  from  either  of  the  parties  related,  to  the  com- 
mon stock,  and  downwards,  to  the  other;  reckoning  a 
degree  for  each  person,  both  ascending  and  descend- 
ing; or  in  other  words,  taking  the  sum  of  the  degrees 
in  both  lines  to  the  common  ancestor,  (a)  Thus,  the 
PROPOSITUS  and  his  cousin  german  are  related  in 
the  fourth  degree:  From  him  to  the  father,  is  one;  to 
the  grandfather  two;  from  the  grandfather  to  the  un- 
cle three;  and  from  the  uncle  to  the  cousin-german 
four  degrees.  (6) 

The  persons  entitled  to  administration,  by  consan- 
guinity according  to  the  foregoing  rules,  and  the  estab- 
lished practice,are,  1.  The  children.  2.  The  father.  3. 
The  mother,  (c)  4.  Brothers.  5.  Grandfathers. (d)  6.  Un- 
cles or  nephews.  And  seventh  and  lastly  cousins.  Males 
are  preferred  to  famales,  in  all  the  clases,  (e]  but  among 
those  of  equal  degree  primogeniture  gives  no  prefer- 
ence: (/)  relations  by  the  father's  and  mother's  side  in 
equal  degree  of  kindred  are  equally  entitled;  (g)  and 
the  half  blood  is  admitted  as  the  whole,  (h) 

A  married  woman  cannot  administer  without  her 
husband's  permission,  as  he  must  give  bond,  which 
she  cannot  do.  (i)  But  if  it  be  shown  by  affidavit  that 
he  is  abroad  or  otherwise  incompetent,  a  stranger  may 
join  in  such  security,  in  his  stead.  In  either  case, 
the  administration  is  committed  to  her  alone,  and  not 
to  her  jointly  with  her  husband;  otherwise  if  he  should 
survive  her,  he  would  be  administrator  contrary  to  the 
meaning  of  the  act.  (£) 

(a)|2  61.  Com.  207,504,  Free,  in  Ch.  593.  (/)  1  Phil.  Hep.  123. 

(6)  See  table.  (g)  Pr.  Wms.  53. 

(c)2Bl.  Cpm.  504.  (h)  11  Vin.  ab.  91.  1  Vent. 

(d)  1 1  Vin.  ab.  3.  Ld .  Rayon.  684.  323, 424. 1  Ven.  437. 
1  Salk.  38.  (i)  61.  Rep.  801. 

(e)  2  81.  Com.  505.  (fc)  1  Salk.  21. 


CHAP,  rr.]       WHO  MAY  BE  ADMINISTRATOR.  ]05 

If  a  married  woman  be  the  only  next  of  kin  and  a 
minor,  she  may  elect  her  husband  her  guardian,  to 
take  the  administration  for  her  use  and  benefit,  during 
her  minority,  but  the  grant  ceases  on  her  coming  of 
age,  when  a  new  administration  may  be  committed  to 
her.  (a) 

A  party  though  otherwise  entitled,  may  be  incapa- 
ble of  the  office  of  administrator,  on  account  of  some 
disqualification  in  point  of  law. 

The  incapacities  of  an  administrator,  are  not  con- 
fined to  such  as  have  been  enumerated  in  regard  to 
executors,  but  comprise  attainder  of  treason  or  felony, 
outlawry,  imprisonment,  bankruptcy,  absence  beyond 
sea;  and  in  short  almost  every  species  of  legal  disa- 
bility: For  by  the  express  requisition  of  the  statute, 
the  ordinary  is  bound  to  grant  administration  to  the 
next  and  most  lawful  friends  of  the  intestate.  (6) 

But  an  alien  friend  or  an  alien  enemy  commorant 
by  license,  is  not  disqualified  to  administer,  though  he 
be  of  the  half  blood,  (c) 

The  right  of  the  next  of  kin  to  administer  is  found- 
ed in  the  interest  they  have  in  the  estate  of  the  dece- 
dent. Where  they  have  no  interest,  this  right  does 
not  exist.  For  if  there  be  a  will,  and  a  residuary  lega- 
tee, and  a  default  of  executors,  administration  will  be 
granted  to  such  legatee;  (d)  and  if  there  be  several 
legatees  entitled  to  the  residue,  it  may  be  granted  to 
cither  of  them;  and  the  others  have  no  claim  to  a  sub- 
sequent grant  in  the  life  time  of  the  grantee,  (e)  Such 

(a)  Toll.  Ex.  92.  (J)  1 1  Vin.  ab,  90,  94. 

(6)  Ibid.  93.  (e)    Corom.    Dig.   Admn.  B.   6.  2 

(')  Toll.  Ex.  9i.  Jones,  162.- Toll.  Ex.  99. 


106  WHO  MAY  BE  ADMINISTRATOR.     [BOOK  in. 

administration  may  be  also  granted,  although  it  be 
uncertain  whether  there  will  be  eventually  a  resi- 
due or  not.  (a) 

If  the  executor  be  himself  residuary  legatee,  al- 
though he  refuse  or  die  before  probate  of  the  will,  in- 
testate, immediate  administration  with  the  will  annex- 
ed is  granted  to  his  administrator:  if  such  executor 
leave  a  will,  his  executor  shall  have  administration, 
and  so  if  he  die  after  probate,  (b) 

If  a  feme  covert  executrix  die  intestate,  adminis- 
tration as  to  the  effects  she  held  in  that  capacity 
shall  be  granted,  to  the  residuary  legatee,  if  any,  or 
to  the  next  of  kin  of  the  testator.  If  she  were  herself 
a  residuary  legatee,  the  husband  may  administer,  (c) 

If  there  be  two  executors,  and  one  proves  and  dies, 
and  then  the  other  announces,  the  executor  of  the 
acting  executor,  has  no  claim  to  the  administration  of 
the  goods  unadministered,  but  the  same  shall  be 
granted  to  the  next  of  kin,  or  residuary  legatee  of 
the  first  testator,  (d) 

If  there  be  two  executors,  one  of  whom  appoints 
an  executor  and  dies,  and  the  survivor  dies  intestate; 
the  executor  of  the  executor,  shall  not  intermeddle 
with  the  first  testator's  effects;  for  the  power  of  the 
testator  was  determined  by  his  death;  and  the  execu- 
torship  vested  solely  in  the  other  executor  as  survi- 
vor, (e) 

So  where  an  administrator  is  appointed  during  the 
minority  of  the  executor  of  an  executor,  he  has  no  au- 
to) Toll.  Ex.  100.  (d)  Com.  Dig.  ad.  MOD.  B.  Salk. 
(6)11  Vin  ab.  89.  Jonea  225.  311. 
(c)  11  Vin.  ab.  89.  2  P.jWm.  161.  4     (e)  Toll.  Ex.  119. 

Burn.  Eel.  236.  3  Salkei. 


OHAP.  ii.]      WHO  MAY  BE  ADMINISTRATOR.  107 

thority  to  intermeddle  with  the  effects  of  the  original 
testator,  (a) 

On  the  renunciation  of  the  widow  or  next  of  kin,  or 
their  neglect  to  take  out  letters  of  administration, 
such  letters  may  be  granted  to  a  creditor.  In  such 
case,  the  course  is  for  the  ordinary  to  issue  a  citation 
for  the  widow  and  next  of  kin  in  special,  and  all 
others  in  general  to  accept  or  refuse  letters  of  admin- 
istration, or  show  cause  why  the  same  should  not  be 
granted,  to  a  creditor.  (6)  This  citation  is  to  be  serv- 
ed on  those  known  to  be  interested. 

In  default  of  application  by  widow,  next  of  kin  or 
creditors,  the  register  will  grant  administration,  to 
such  discreet  person  as  he  shall  approve,  upon  ap- 
plication made  in  the  usual  form,  (c.) 

In  cases  not  provided  for  by  the  stat.  of  Edward 
III.  and  Henry  VIII.  it  is  held  that  the  register  may 
make  the  grant  to  whom  he  pleases;  and  that  he  may 
impose  upon  the  grantee  such  terms  as  he  thinks  rea- 
sonable, (d) 

SECTION   IV. 

Administrators  how  appointed. 
By  the  act  of  nineteenth  April,  1794,  Sec.  l,(e) 
the  register  is  required  upon  granting  letters  of  ad- 
ministration, to  take  bonds  with  two  or  more  sure- 
ties (respect  being  had  to  the  value  of  the  estate) 
in  the  name  of  the  commonwealth,  conditioned  that 
the  administrator  shall  make  a  true  and  perfect  in- 

(a)  11  Vin.  ab.  67.   note   83.  Qff.  104. 

Ex.101.  (c)  2  BI.  Com.  505. 

(&)  4   Burns.  Ex.   L.   230,  2  Bl.  (rf)  Toll.  Ex.  105-6.  4  Burns  EC.  L. 

Com.  505.   Salk.  38.   Toll.   Ex.  (c)3Srn.L.  14  :.                          [237 


108      APPOINTMENT  OF  ADMINISTRATORS.  [BOOKIII. 

ventory  of  all  the  goods,  chattels  and  credits  of  the 
deceased,  which  have  or  shall  come  to  his  hands,  or 
to  the  hands  of  any  other  person  for  him-,  and  the 
same  shall  exhibit  in  the  register's  office,  on  or  before 
a  day  given:  and  faithfully  shall  administer  the  goods, 
chattels,  and  credits  of  the  deceased,  according  to  law; 
and  shall  make  a  true  and  just  account  of  his  admin- 
istration, on  or  before  a  day  given,  and  all  the  rest  and 
residue  of  the  said  goods,  and  chattels,  and  credits, 
which  shall  be  found  remaining  upon  the  said  account, 
the  same  being  first  examined  and  allowed  by  the 
Orphan's  Court,  shall  deliver  and  pay  to  such  per- 
sons as  the  said  court,  by  their  decree  or  sentence 
shall  appoint;  and,  if  it  shall  appear  that  any  last  will 
and  testament  was  made  by  the  deceased,  and  the  ex- 
ecutor therein  named  exhibit  the  same  into  the  regis- 
ter's office,  making  request  to  have  it  approved  and  al- 
lowed that  the  administrator  being  thereunto  requir- 
ed, shall  deliver  and  render  the  letters  of  administra- 
tion, such  will  being  first  proved  in  the  register's  of- 
fice. 

On  taking  out  letters  of  administration  the  party 
swears  to  the  death  of  the  decedent,  that  he  made  no 
will  as  far  as  the  deponent  knows  or  believes,  and 
that  he  will  truly  administer  the  goods  and  chattels 
and  credits,  by  paying  the  deceased's  debts  as  far  as 
the  same  will  extend,  and  the  law  charge  him,  and 
that  he  will  make  a  true  and  perfect  inventory  of  all 
the  goods,  chattels  and  credits  and  exhibit  the  same 
within  one  month,  and  adjust  and  settle  his  accounts 
in  one  year,  or  when  lawfully  required,  (a) 

Vppend.  No.   15.  Toll.  Ex  96. 


CHAP,  ii.}  APPOINTMENT  OF  ADMINISTRATORS.     109 

Administration  is  granted  at  any  time  after  the 
deatli  of  the  intestate,  unless  a  caveat  be  entered. 
But  the  person  applying  takes  the  letters  at  his  peril: 
for,  if  one  having  paramount  right  apply  before  the 
expiration  of  fourteen  days,  the  register  will  revoke 
his  grant. 

If  administration  be  once  committed  to  the  proper 
person,  a  grant  cannot  be  made  to  another,  though 
in  the  same  degree  of  kindred.  In  the  case  of  execu- 
tors it  is  different,  one  having  a  right  to  probate 
though  it  have  already  been  taken  out  by  his  co-ex- 
ecutor. (a) 

Administration  may  be  committed  to  one,  of  cer- 
tain effects,  as  a  term  for  years,  and  the  rest  of  the 
estate  to  another;  or  for  effects  in  this  county  to  one, 
and  for  effects  in  that  county  to  another.  But  several 
administrations  cannot  be  granted  of  the  same  thing. 


No  person  having  taken  out  letters  of  administra- 
tion, in  one  county  of  the  state  is  obliged  to  take 
such  letters  in  any  other  county,  wherever  the  intes- 
tate's estate  may  lie.  (c) 

As  the  powers  of  the  administrator  depend  altoge- 
ther upon  the  appointment  of  the  register,  who  is  the 
officer  of  the  commonwealth;  it  follows  that  an  ap- 
pointment by  any  other  person  can  have  no  validity 
within  the  state,  except  so  far  as  the  law  may  have 
specially  permitted.  Thus  letters  of  administration, 
granted  by  the  Archbishop  of  York  in  the  kingdom 
of  Great  Britain  are  not  sufficient  authority  to  main- 
tain action  here.(d)  The  provisions  of  the  act  of  1705, 

(a)  1  Vent.  318.  Toll.  Ex.  OS.  (c)  Sm.  I,.  135. 

(&)  Toll.  Ex.  106.  (d)  Grxme  v.  Harris,  1  Dall.  456. 


1 10     APPOINTMENT  OF  ADMINISTRATORS.  [BOOK  HI. 

relating  to  letters  of  administration  granted  out  of  the 
then  province  being  universally  considered  not  to 
extend  further,  than  to  the  provinces  in  this  country 
at  the  time  the  act  was  passed,  (a)  But  under 
that  act  and  by  force  thereof,  letters  of  administration 
granted  in  a  sister  state  are  sufficient  authority  to 
maintain  an  action  in  this  state;  and  such  has  been  the 
practice  without  regard  to  the  particular  intestate 
laws  of  the  state  in  which  they  have  been  granted.  (6) 

Upon  the  principle,  that  the  administrator  derives 
his  power  from  the  appointment  of  the  register,  it  is, 
that,  where  two  are  appointed,  the  office  survives  to 
the  one,  on  the  death  of  the  other;  (c)  and  that,  on 
the  death  of  a  sole  administrator,  it  results  to  the  re- 
gister to  appoint  another:  On  the  same  principle  al- 
so, the  register  appoints  an  administrator,  when  an 
executor  dies  intestate,  to  his  testator,  (e?) 

An  administrator  has  the  office  and  quality  of  an 
executor;  the  interest  of  the  one  in  the  property  of 
the  deceased,  is  in  all  respects  the  same  as  that  of  the 
other,  (e)  The  interest  of  special  or  limited  admin- 
istrators, is  also,  during  its  continuance  the  same  as 
that  of  an  executor;  (/)  but  their  power  and  authority 
are  not,  as  we  have  seen,  in  all  cases  the  same. 

Administration  is  generally  granted  by  writing  un- 
der seal,  (g)  It  may  also  be  committed  by  entry  in 

(a)  M'Cullough  v.  Young.   1  Binn.  506.  Toll.  Ex.  114. 

63.  4  Ball.  292.  (e)  Off.  Ex.  259.  Suppl,  48.  5  Co. 

(6)  Ib.  Ib.  83.  1  Pr.  Wms.  43.  1  Atk.  460.  2 

(c)  4  Barns.  EC.  L.  241.  Cas.  tern.  Ves.  267. 
Talb.  127.  (/)  2  Fonbl.  388 

(d)  4  Burn.  EC.  L.  241.  2  Bl.  Com.  (g)  Append.  16. 


OHAP.  ii.]  APPOINTMENT  OF  ADMINISTRATORS.      1 1 1 

the  registry,  without  letters  under  seal:  but  it  cannot 
be  granted  by  parole,  (a) 

Administrations  improperly  granted,  are  void  or 
voidable.  If  void,  the  acts  of  the  administrator  are 
also  void:  If  voidable  only,  his  acts  are  valid.  (&) 

The  Register's  Court,  has  a  right  to  revoke  letters 
of  administration,  where  they  have  issued  improperly, 
and  to  direct  to  whom  new  letters  shall  issue,  (c)  But 
if  the  decision  of  the  court  be  appealed  from,  such 
letters  are  not  revoked  pending  the  appeal,  but  the 
administrator  may  proceed  in  the  recovery  of  the 
debts  due  to  his  intestate,  (d) 

The  following  are  instances  of  void  administrations: 

1.  If  there  be  an  executor,  and  administration  be 
granted  before  probate,  or  refusal,  even  though  the 
will  were  suppressed  or  its  existence  were  unknown, 
or  it  were  dubious  who  was  executor,  or  he  was  con- 
cealed, or  abroad  at  the  time  of  granting  administra- 
tion:^) 2.  If  there  be  two  executors,  one  of  whom 
proves  the  will,  and  the  other  refuses,  and  he  who 
proved  the  will  die,  and  administration  be  granted  be- 
fore the  refusal  of  the  survivor  subsequently  to  the 
death  of  his  co-executor,  even  though  he  refuse  after 
administration  granted.  (/)  3.  If  granted  on  the  ground 
of  the  executor's  bankruptcy,  or  committed  during  his 
minority,  where  the  infant  executor  had  attained  the 
age  of  seventeen,  (g) 

(a)  Toll.  Ex.  1 19.  1 1  Vin.  ab.  70.  1  R.  202. 

Show.  408-9.  Godolph.  231.  Com.  (e)  Coinm.  Dig.  Adm.  B.  1.  1 1  Vin 

Dig.  Admn.  B.  7.  ab.  68  2  Lev.  192. 

([>)  Com.  Dig.  Adm.  B.  10.  2  Lev.  (/)  Com.  Dig.  Ad.  B.  2.  10.  2  Lev. 

181.  3  Bac.  ab.  50.  182.Gri(Gth  v.  Frazer,  8  Crane!.. 

(c)Toll.  125.  StOBver  y.  Ludwig,  4  9,  21. 

Sergt.  &  R.  201.  (g-)  11  Vin.  ab.  99.  5  Co.  2'J.  b. 
(d)  SLauffler  ?.  Stcerer,  4  Serjt.  ft 


APPEAL  FROM  REGISTER'S  COURT.    [BOOK  in. 

Administrations  granted  in  the  following  cases  are 
voidable  only: 

1  When  granted  to  a  party  not  the  next  of  kin;  (a) 
2.  Or  to  one  next  of  kin,  with  one  not  next  of  kin,  as 
to  a  sister  and  her  husband;  (b)  3.  Or  to  the  wife's  next 
of  kin  instead  of  the  husband;  (c)  4.  Or  if  granted  on 
the  refusal  of  an  executor,  who  had  before  administer- 
ed; (d)  5.  Or  without  citing  the  necessary  parties;  (e) 
6.  Or  to  a  stranger;  (/)  7.  Or  by  fraud  and  misrepre- 
sentation, though  otherwise  duly  granted;  (g)  as  where 
the  grantee  by  false  suggestions  prevented  a  party 
in  equal  degree  from  applying;  8.  Where  administra- 
tion is  granted  in  consequence  of  the  incapacity  of  the 
next  of  kin,  and  the  incapacity  ceases;  (h)  9.  If  the 
grantee  shall  become  non  compos  mentis,  or  otherwise 
incapable;  10.  Or  if  granted  to  a  creditor  before  the 
renunciation  of  the  next  of  kin;  (i)  11.  If  granted  to 
the  next  of  kin,  and  there  be  a  residuary  legatee. 

But  whether  the  administration  be  void  or  voida- 
ble, a  bona  fide  payment  to  the  administrator,  of  a 
debt  due  to  the  estate,  will  be  a  legal  discharge  to 
the  debtor,  (fe)  And  if  administration  be  granted  and 
an  executor  appear,  and  the  administrator  have  paid 
debts,  legacies,  or  funeral  expenses,  he  shall  be  allow- 
ed such  payments.  (I) 

The  register  is  not  impowered  to  repeal  letters  of 
administration,  at  his  mere  pleasure,  but  must  repeal 

(a}  Salk.  38.  1  Pr.  Wms.  42.  4  Serg.  (g)  Ib.  Ib.  114,  117. 

&  II.  202.  (A)  1 1  Vin.  ab.  115. 1  Sid.  303. 

(b)  Com.  Dig.  Adm  .B.  8.  Toll.  Ex.  (i)  Com.  Dig.  Adra.  B.  6.  1  Salk. 

(d '  Vin.  ab.  85.  1  Sid.  409.  38.  4  Burn.  EC.  L.  249.  Stra.  91 1 

(«/)  Com.  Dig-,  adm.  B.  8.  Off.  Ex..  (fc)  3  Term  R.  125.  11  Vin.  ab.  117. 

40  41.  11  Vin.  ab.  115.  Finch  Rep.  40. 

(e)  Com.  Dig.  Adm.  B.  8.  Lev.  305.  (/)  3  Bac.  ab.  50.  Plowd.  282. 
if)  11  Vin.  ab.  95. 


UHAP.  ii.]    APPEAL  FROM  REGISTER'S  COURT.          1 13 

for  cause;  (a)  which  is  inquirable  into,  on  appeal,  to 
the  Register's  Court,  and  from  thence  to  the  Supreme 
Court,  (b) 

Thus  he  may  not  repeal  letters  on  the  suit  of  a 
party  claiming  to  be  the  widow  of  the  intestate,  after 
grant  of  administration  to  the  father-,  (c)  nor  at  the  in- 
stance of  a  brother,  when  granted,  to  a  sister  or  mar- 
ried woman,  pending  a  caveat  entered  by  the  brother; 
(rf)  nor  where  administration  was  granted  to  a  young- 
er, in  preference  to  an  elder  brother;  (e)  nor  when 
granted  to  a  creditor,  at  the  suit  of  another  creditor, 
for  a  larger  amount. 

If  administration  be  committed  to  a  creditor,  he 
may  maintain  it,  against  the  executor  of  a  will  after- 
wards produced,  or  the  next  of  kin;  and  is  at  liberty 
to  shew  cause  why  it  should  not  be  revoked.  (/) 

If  the  administration  be  repealed  for  want  of  form 
in  the  grant,  the  register  must  regrant  it,  to  the  same 
party;  although  there  be  others  in  equal  degree,  (g) 
So,  if  it  be  repealed  because  inadequate  security  was 
taken.  (/») 

Some  authorities  maintain  that  if  administration  be 
committed  to  the  wrong  party,  a  subsequent  grant  to 
the  right  one,  is  a  repeal  of  the  first,  without  sentence 
of  revocation;  (i)  but  by  others,  the  contrary  is  held, 

(a)  11  Vin.  ab.  114.4  Burn.  EC.  L.  (d)  II  Vin.  ab.  115.  1  Lev.  186. 

248-9.  Com.  Dig.  Adm.  B.  8.  1  (e)  Vin.  ab.  115.  2  Kebl.  812.  ' 

Pr.  Wms.  42.  Raym.  93.  3  Salk.  (/)  Phill.  Rep.  173. 

22.  11  Vin.  ab    115    1  Kebl.  667,  (g)  11  Vin.  ab.  1 15,  1  Sid.  293.  TolJ. 

683.  1  Sid.  179.  Toll.  Ex.  122-3.  Ex. 

(6)  Comm.  v.  Brady.  3  Sergt.  &  R-  (ti)  Com.  Dig.  B.  Sid.  293. 

309.  (t)  11  Vin.  ab.  114,  4  Burn.  EC.  L. 

(c)  Ld.  Raym.  93.  249. 


114          APPEAL  FROM  REGISTER'S  COURT.   [BOOK  in. 

and  the  practice  is,  to  call  in  and  revoke  the  first  ad- 
ministration, before  the  second  is  granted,  (a). 

By  act  of  Assembly  twenty-seventh  March  1713, 
Sec.  II.  (6)  if  the  register  grant  letters  of  administra- 
tion, and  no  bond  with  sureties  be  given;  they  are 
void,  and  the  register  and  his  sureties  are  made  liable 
to  pay  all  damages  accruing  to  any  one,  by  reason  of 
such  grant.  And  the  party  to  whom  the  letters  are 
granted;  is  liable  as  an  executor  in  his  own  wrong, 
and  shall  be  so  taken,  in  any  suit  brought  against 
him,  on  account  of  his  administration;  and  if  the  re- 
gister have  not  taken  sufficient  sureties,  where  the 
administrator  may  not  be  able  to  make  good  the  value 
of  the  decedent's  estate,  the  Orphan's  Court,  is  em- 
powered to  cause  such  administrator  to  give  better 
security  to  the  register,  by  bond,  under  such  penalty, 
and  with  such  sureties,  as  the  court  after  hearing  the 
creditors  and  others  concerned,  may  approve. 

If  the  administrator,  embezzle,  waste,  or  misapply, 
or  suffer  to  be  embezzled,  wasted,  or  misapplied,  any 
part  of  the  decedent's  estate,;  or  if  he  neglect  or  refuse 
to  give  bond  with  sureties,  according  to  the  order  of 
the  court,  the  court  is  enjoined  forthwith,  by  its  sen- 
tence to  revoke  the  letters  of  administration,  and  the 
register  is  required  thereupon,  to  grant  letters  to 
such  persons  having  right,  as  will  give  proper  bonds. 
And  such  newly  appointed  administrator,  may  have 
trover  for  such  goods  and  chattels,  as  had  come  to  the 
possession  of  his  predecessor. 

(a")  11  Via.  ab.   115.  n.  Cro.  Eliz.  315.  (6)  1  Sm.  L.  81. 


CHAP.  HI.]  OF  CHATTELS  REAL.  115 

CHAPTER  III. 

OF  THE  INTEREST   OF  THE  EXECUTOR  AtfD  ADMINISTRA- 
TOR, IN  THE  ESTATE  OF  THE  DECEDENT. 

SECTION  I. 

Of  Chattels  real. 

As  every  species  of  property  in  Pennsylvania  is 
subjected  to  the  payment  of  the  debts  of  the  decedent, 
and  as  the  executor  or  administrator  is  his  representa- 
tive, whose  duty  is,  to  collect  his  property,  pay  his 
debts  and  distribute  the  balance  among  those  entitled 
to  receive  it-,  it  follows  that  the  executor  or  adminis- 
trator must  have  such  an  interest  in  the  decedent's 
estate  as  will  enable  him  to  execute  his  office  effec- 
tually. 

The  executor  or  administrator  has  therefore  a  full 
and  perfect  right  to  the  possession  of  the  personal  es- 
tate of  the  decedent,  such  estate  being  primarily  ap- 
propriated to  the  payment  of  debts,  (a)  and  requiring 
immediate  care  for  its  preservation. 

Personal  estate  is  divided  into  chattels  real  and  chat- 
tels personal. 

Chattels  real  are  such  as  concern,  or  savour  of,  the 
realty;  as  terms  for  years  and  estates  extended  for  the 
payment  of  debts,  under  the  act  of  1705,  and  mort- 
gages. 

Terms  for  years  seldom  form  an  important  part  of 
the  estate  of  a  decedent  in  Pennsylvania.  The  con- 

(o)  Tod  r.  Tod's  Exrs.  1  Sergt.  &  R.  453. 


1 16  OF  CHATTELS  REAL.  [BOOK  ni. 

stant  mutation  of  owners  of  land,  rendering  long  leases 
inconvenient;  and  the  love  of  gain  greatly  active  in  a 
community  where  the  death  of  almost  every  male 
adult  produces  a  partition  of  property,  occasioning  the 
rent  reserved,  to  be,  generally,  of  the  full  value  of  the 
property.  Improving  leases  of  new  lands  may  per- 
haps form  an  exception-,  yet  the  perpetual  division  of 
estates  and  the  desire  of  the  distributees  to  make  their 
portions  immediately  available,  must  necessarily  limit 
the  number  of  estates  for  years  in  the  only  cases  in 
Which  they  are  greatly  to  be  desired. 

Whatever  interest,  however,  the  decedent  may 
have  had  in  the  lease  for  years,  passes  to  the  executor 
or  administrator,  subject  to  the  rent  and  such  other 
conditions  as  have  been  created  by  the  lease,  (a)  And 
the  value  of  the  term  after  payment  of  the  rent  and 
other  charges  is  assets.  (6)  If  the  decedent  have  leas- 
ed for  a  term  shorter  than  his  own,  the  reversion  is 
assets;  (c)  and  the  executor  hold  the  term  and  pur- 
chase the  reversion  in  fee,  he  continues  chargeable 
for  the  assets  in  respect  to  the  term,  although  it  be 
extinguished,  (d)  So  if  the  executor  surrender  the 
lease  it  shall  be  considered  as  assets  though  the  term 
be  extinct,  (e) 

A  lease  for  years  determinable  on  lives  is  a  chattel 
interest,  and  shall  vest  in  the  personal  representative 
of  the  lessee.  (/) 

And  where  A  tenant  for  lives,  to  him  and  his  heirs, 
assigned  over  his  whole  estate  in  the  premises,  by 

(a)  3  T.  Rep.  13.  (d)  11  Via.  ab.  229.  Toll.  Ex.  142. 

(6)  11  Vin.  ab.  166.  Harg.  Co.  Lit.  (e)  Ib. 

8.  n.  10.  Toll.  Ex.  141.  (/)  Toll.  Ex.  141. 
0)  Ib.  1 1  Vin.  ab.  240. 


CHAP,  m.]  OF  CHATTELS  REAL.  117 

lease  and  release  to  B  and  his  heirs,  reserving  rent 
to  A,  his  executors  and  administrators,  the  rent  was 
held  payable  to  A's  executors,  and  not  to  his  heir-,  on 
the  ground  .that  there  was  no  reversion  to  the  as- 
signor, and  the  rent  was  expressly  reserved  to  the  ex- 
ecutor; and  that  therefore  the  proviso  for  the  heir  to 
enter  was  not  material,  for  the  reservation  of  the  rent 
being  to  the  executor,  the  heir  in  case  of  re-entry 
would  be  a  trustee  for  him.  (a) 

If  A,  have  a  term  in  right  of  his  wife  as  executrix, 
and  he  purchases  the  reversion,  the  term  is  extinct 
as  to  her,  though  she  survive,  but  in  regard  to  a 
stranger  it  shall  be  considered  assets  in  her  hands.  (6) 

But  if  terms  be  created  for  the  purpose  of  marriage 
settlements,  they  are  not  assets,  (c) 

If  the  term  for  years  be  valueless,  still  the  execu- 
tor cannot  waive  it,  whilst  he  has  assets.  If  there  be 
no  assets,  he  may  waive  the  term:  But  in  case 
there  are  assets  to  bear  the  loss  for  some  years, 
thougfi  not  during  the  whole  term,  it  seems  the  ex- 
ecutor is  bound  to  continue  tenant  till  the  fund  is 
exhausted,  when  on  giving  notice  to  the  lessor,  he 
may  waive  the  possession,  (d) 

The  rent  in  arrear  at  the  time  of  the  lessor's  death 
goes  to  the  executor,  (e) 

Where  the  chattel  concerns  corporeal  heredita- 
ments, as  leases  for  years  of  houses  or  lands,  the  ex- 
ecutor is  not  deemed  to  be  in  possession  of  them  until 
he  has  actually  entered;  if  it  relate  to  incorporeal 

hereditaments,  the  possession  of  the  executor  is  ne- 

• 

(a)  1  P.  Wms.  555.  (d)  Com.  Dig.  Off.  Ex.  120.  Toll.Ex.  144. 

(6)  11  Yin.  ab.  236.  (e)  Off.  Ex.  53.  Supp.  119.  3  Bac.  ab.  63. 

(c)Toll.  Ex.  142-3. 


118  OF  CHATTELS  PERSONAL.  [BOOK  in. 

cessarily  constructive,   because  there  can  be  no  en- 
try, (a) 


SECTION  II. 

Of  Chattels  Personal. 

Chattels  personal  are  such  things  as  are  annexed  to, 
or  attendant  on  the  person  of  the  owner.  (6) 

They  are  distinguished  into  animate,  vegetable, 
and  inanimate,  (c) 

The  animate  are  divided  into  wild  and  tame.  The 
wild  are  such  as  have  not  been  subjected  to  the  will  of 
man,  as  deer,  buffalo,  rabbits,  pigeons,  partridges,  &c. 
These  admit  of  a  qualified  property  only.  Therefore, 
unless  they  be  reclaimed,  or  rendered  tame  by  art, 
industry  and  education,  or  confined,  so  that  they  can- 
not escape,  and  enjoy  their  natural  liberty,  or  unless 
they  be  incapable  from  weakness,  of  flying  or  run- 
ning away,  they  are  not  regarded  in  the  light  of  pri- 
vate property  j  and  consequently  cannot  pass  to  repre- 
sentatives. (d) 

Those  animals  which  are  of  a  domestic  nature,  as 
horses,  kine,  sheep,  hogs,  poultry,  &c.  are  the  sub- 
jects of  absolute  property,  and  pass  like  all  other 
personal  chattels  to  the  executor,  (e) 

In  a  word  every  species  of  animal,  which  is  capa- 
ble of  being  designated,  possessed,  transferred  and  en- 
joyed, passes  to  the  representative  of  the  decedent. 


(a)  Off.  Ex.  108-9.  1  1  .  Vin.  air.  240.  Biens.  A.  2. 

(6)  Toll.  Ex    146.  (e]  Ibid. 

(c)  2  BI.  Cora.  387-389.  (/)  Toll.  Ex.  147. 

(d)  2  Bl.  Com.   290.    Com.    Dig. 


•HAF.  in.]          OF  CHATTELS  PERSONAL.  H9 

Personal  effects  of  a  vegetable  nature  are  the  fruit, 
or  other  parts  of  the  plant,  or  tree,  when  severed 
from  the  body  of  it,  or  the  whole  plant  or  tree  itself 
when  severed  from  the  ground;  as  apples  or  pears 
which  are  gathered,  or  fallen,  grass  which  is  cut,  and 
trees  and  their  branches  which  are  fallen  and  lop- 
ped, (a) 

And  there  are  various  vegetables  which  are  raised 
annually  by  labour  and  manurance  which  are  deemed 
personal,  and  go  to  the  executor,  although  they 
are  affixed  to  the  soil.  These  are  called  emblements 
and  include  corn  growing,  hops,  saffron,  hemp,  flax, 
and  as  it  seems  clover,  saint-foin,  (6)  melons,  cucum- 
bers, artichokes,  carrots,  turnips,  and  even  hops  grow- 
ing from  ancient  roots,  and  every  other  yearly  pro- 
duction in  which  art  and  industry  must  combine  with 
nature,  (c)  Manure  in  a  heap  before  it  is  spread  up- 
on the  land  is  also  a  personal  chattel,  (d) 

Personal  chattels  inanimate,  are  household  goods, 
merchandize  money,  pictures,  jewels,  garments,  pro- 
perty in  the  public  funds,  and  every  thing  not  inclu- 
ded in  the  former  classes,  that  can  be  properly  put  in 
motion  and  transferred  from  place  to  another,  (e) 

The  executor  has  also  an  interest  in  the  service  of 
a  negro  slave,  or  indented  servant.  But  he  has  none 
in  an  apprentice,  the  contract  for  instruction,  being 
merely  personal  and  dies  with  the  master.  (/)  It  is 
perhaps  otherwise,  where  the  covenant  extends  to  ex- 
ecutors, and  administrators. 

(o)  Bl.  Com.  389.  Off.  Ex.59.  (</)  11  Vin.  ab.   175. 

(6)  2  Bl.  Com.  122-3.  Toll.  Ex.  (e)  2  Bl.  Com  387,  389. 

150.  (/)  Off.  Ex.  56.  Cora'th  v.  King.  4 

(c)'Har.  Co.  Litt.  55.  b.  note.  Toll.  S.  &  11.  109.  Baxter  v.  Burfield. 

Ex.   150.  2Sha.  1266. 


120  OF  CHATTELS  PERSONAL.  [BOOK  in. 

By  the  act  of  the  eleventh  April,  1799,  if  the  term 
of  the  indenture  extend  to  executes  and  administra- 
tors, the  remainder,  unexpired  at  the  death  of  the 
master,  may  be  assigned  by  the  executor  or  adminis- 
trator to  such  suitable  person  of  the  trade  or  calling, 
mentioned  in  the  indenture  as  shall  be  approved  by 
the  Quarter  Sessions  of  the  proper  county,  (a)  This 
act  confers  an  authority  unknown  to  the  common  law, 
and  is  to  be  construed  strictly,  it  gives  no  interest  to 
the  executor  in  the  residue  of  the  term.  He  has  a 
mere  naked  authority  to  assign  with  the  approbation 
of  the  court,  he  is  not  entitled  to  the  custody  of  the 
apprentice 5  nor  can  he  exercise  any  personal  authori- 
ty over  him.  (6)  The  power  delegated  by  the  act 
must  be  exercised  in  a  reasonable  time,  under  all  the 
circumstances  of  the  case,  otherwise  the  apprentice 
will  be  at  liberty  to  provide  for  himself,  (c) 

Under  the  several  acts  of  congress,  the  executors 
and  administrator  have  an  interest  in  the  copy  right 
or  patent  granted  to  the  decedent. 

The  interest  of  the  executor  in  all  these  chattels  is 
vested  at  the  instant  of  the  testator's  death;  and  that  of 
the  administrator  from  the  death  of  the  intestate  by 
relation;  whether  the  executor  or  administrator  have 
reduced  them  into  his  actual  possession  or  not,  and 
however  widely  dispersed  or  remotely  situated,  they 
are  regarded  as  assets  in  his  hands,  (rf) 

But  to  support  the  title  of  the  executor,  or  to  con- 
stitute assets;  the  absolute  property  of  such  chatties, 

(a)  3  Sm.  L.  386.  (c)  Ibid. 

(6)  Com'th  v.  Kiii£,  4  Sergt.  &  R.     (</)  Off.  Ex.  105,  109.  3  Bac.  Ab.  57. 
109.  Toll.  Ex.  153. 


CHAP,  in.]  OF  CHATTELS  PERSONAL.  121 

must  have  been  vested  in  the  testator;  and  therefore 
if  A  take  a  bond  in  trust  for  B,  and  die,  it  shall  form 
no  part  of  the  assets  of  A.  (a)  Nor  shall  goods  bailed 
or  delivered  for  a  particular  purpose,  as  to  a  carrier 
to  convey,  or  to  an  innkeeper  to  secure  in  his  inn,  be 
assets  in  the  hands  of  their  respective  executors.  (6) 
So  in  the  case  of  goods  pawned;  they  shall  not  be  as- 
sets until  the  time  of  redemption  be  passed;  and  goods 
distrained  are  not  assets  of  the  distrainor.  (c) 

If  A  consent  to  a  disposition  of  the  goods  of  the  in- 
testate, and  afterwards  take  out  administration,  he 
shall  be  bound  by  the  antecedent  gift,  (d)  But  if  the 
executor  make  a  fraudulent  gift  of  them  they  shall 
continue  assets,  (c) 

Such  deeds  and  writings  as  relate  to  terms  for 
years,  or  other  chattels,  or  are  securities  for  debts, 
belong  to  the  executor.  (/) 

Also  the  property  in  the  coffin,  shroud  and  other 
apparel  of  the  dead  body  remains  in  the  executor,  (g) 

Chattels  whether  real  or  personal  may  be  held  in 
jointenancy,  as  in  severalty.  As  if  a  lease  for  years 
or  a  horse  be  given  to  two  or  more  persons  absolutely; 
and  unless  the  jointure  be  severed,  it  shall  be  the  ex- 
clusive property  of  the  survivors,  (k) 

If  the  jointure  be  severed  as  by  either  of  them 
assigning  his  interest,  or  selling  his  share,  the  assignee 
or  vendee,  and  the  remaining  lessee  or  part  owner, 
shall  be  tenants  in  common,  without  any  jus  accrescen- 

(a)  I  Salk.  79.  Toll.  Ex.  153.  (e)  3  Bac.  Ab.  tit.  adm.  Crok.  Eliz. 

(b)  Shep.  Touch.  496.  405. 

(c)  Ibid.  Toll.  Ex.  154.  (/)  3  Bac.  ab.   65.  Off.  Ex.   63.   3 

(d)  Com.  Dig.  Admin.  B.  10.  1  Salk  Bro.-ch.  Rep.  80. 
265.  3  Salk.  161.  Garth.  1 03.  (g)  2  Bl.  Cora.  429. 

(h)  Ibid.  399. 


OF  CHATTELS  PERSONAL.          [BOOK  HI. 

cfi,  or  right  of  survivorship,  (a)  So  if  a  sum  of  money 
be  given  by  will  to  two  or  more,  equally  to  be  di- 
vided between  them,  they  shall  be  tenants  in  common. 
(6)  On  the  principle  also  of  encouraging  husbandry 
and  commerce,  stock  on  a  farm,  although  occupied 
jointly,  or  stock  of  a  partnership  in  trade,  shall  always 
independently  of  any  express  contract  to  that  effect, 
be  considered  as  common  and  not  as  joint  property, 
and  therefore,  in  these   instances,  there  shall  be  no 
survivorship;  but  the  interest  of  the  party  dying,  shall 
vest  in  his  executor,  (c)  At  law  it  is  true,  the  reme- 
dy survives  but  the  duty  does  not  survive;  and  there- 
fore if  one  of  two  joint  merchants  die,  the  action  for 
money  due  to  them,  survives  for  the  survivor;  and 
the  executor  of  the  deceased,  cannot  join  in  an  action. 
But  the  survivor  on  recovery,  is  liable  to  an  action  of 
account  by  the  executor,  (rf) 

Chattels  personal  in  the  hands  of  an  executor  may 
in  certain  cases,  be  changed  into  chattels  real,  and 
so  vice  versa;  as  if  a  debt  be  due  to  J.  S.  as  executor 
on  judgment,  and  he  sue  out  execution  and  take  the 
lands  of  the  debtor  in  extent,  the  personal  duty  is  in 
that  case  converted  into  a  chattel  real:  On  the  other 
hand,  if  such  an  estate  by  extent  or  a  mortgaged  term 
devolve  on  an  executor,  and  the  debtor  or  mortgagor 
pay  the  money  due,  such  chattels  real  are  turned  in- 
to chattels  personal,  (e) 

(a)Litt.  S.  321.  Cora.  Dig.  5.  K.  (d)    Salk.    444.    Show.  188.  Toll. 

Crok.  Eliz.  33.  Ex.  156. 

(6)  1  Eq.  C.  Ab.  292.  (e)  Off.   Ex.  75.   3  Bl.  Cora.  420. 

•c)2Bl.  Com.   399.  Toll.  Ex.  155.  Toll.  Ex.  156. 


CHAP,  m.]  OF  CHOSES  IN  ACTION.  123 

SECTION   HI. 

Ofchoses  in  action. 

The  executor  or  administrator  is  entitled  to  the 
goods  and  chattels  of  the  decedent,  though  they  be 
Hot  in  possession,  but  in  action  only.  Things  or  cho- 
ses  in  action,  are  either  such  as  accrued  before,  or 
such  as  accrued  after  his  death. 

Of  the  first,  are  the  debts  due  to  the  decedent,  of 
every  description,  which  when  received  by  the  ex- 
ecutor shall  be  assets  in  his  hands,  (a) 

By  the  stat.  4,  Edward  III.  c.  7,  in  force  here,  (b) 
the  executor  is  also  entitled  to  compensation  in  dama- 
ges for  a  trespass  committed  on  the  testator's  goods 
in  his  life  time,  and  by  the  equity  of  the  statute  for  a 
conversion  of  the  same;  or  for  a  trespass  with  cattle 
on  his  close,  or  for  cutting  his  growing  corn,  which 
is  a  chattel,  and  carrying  it  away,  at  the  same  timej 
to  ejectment,  for  ejecting  him,  and  in  short  to  an  ac- 
tion for  every  other  injury  done  to  his  personal  es- 
tate previously  to  his  death,  (c) 

An  executor  may  also  have  damages  for  the  breach 
of  a  covenant  to  do  a  personal  thing,  (d)  though  the 
covenant  sound  in  the  realty,  as  for  not  assuring  lands. 
He  may  recover  on  the  bail  bond  if  his  decedent 
were  assignee  of  the  bond,  (e)  He  may  recover  da- 
mages against  the  sheriff  for  permitting  a  party  to  es- 
cape during  the  life  of  his  decedent;  (/)  for  not  re- 
turning his  writ  and  payingmoney  levied  on  a  fi.  fa-, 
(g)  or  for  a  false  return,  (h)  If  the  testator  were  en- 

(a)Off.  Ex.    65.    3  Bac.    ab.   59.  13.  1  Ven.  176.  Toll.  Ex.  158. 

Com.  Dig.  Admin-  B.  13.  (e)  Com.  Dig.  Admin.  B.  13. 

(6)  Judges'  Rep.  Rob.  Dig.  248.  (/)  Ib.  4  John's  Rep.  42. 

(c  Toll.  158.  3  Johns.  Rep.  227.  (g)  Com.  Dig.  ib.  Cro.  Car.  297. 

(</)  Lat.  168.  Com.  Dig.  Admin.  B.  (h)  1  Salk.  12. 


124  OF  CHOSES  IN  ACTION.  [BOOK  in. 

titled  to  a  writ  of  error,  or  audita  querela,  &c.  the  ex- 
ecutor may  bring  them,  (a)  He  may  replevy  the  goods 
of  the  testator;  (6)  or  recover  damages  of  an  officer  for 
removing  goods  taken  into  execution,  before  the  tes- 
tator who  was  the  landlord  had  been  paid  a  year's 
rent,  (c)  And  in  general  an  executor  has  a  right  to 
compensation,  whenever  the  testator's  personal  es- 
tate has  been  damaged,  and  the  wrong  remains  unre- 
dressed  at  the  time  of  his  death,  (d) 

But  an  executor  has  no  right  to  an  action  for  an  in- 
jury done  to  the  person  of  the  testator,  because  per- 
sonal injuries  die  with  him  who  receives  them,  (e) 

In  England  the  executor  or  administrator  cannot 
bring  trespass  for  injury  done  to  the  freehold  in  the 
life  of  the  decedent.  (/)  And  such  would  seem  to  be 
the  law  in  Pennsylvania,  where  it  has  been  frequently 
ruled,  that  none  but  the  person  in  possession  of  the 
land  can  maintain  trespass  for  injury  thereto,  (g)  or 
trover  for  taking  away  the  soil,  (h) 

But  in  Connecticut,  however,  the  administrator 
has  been  permitted  to  bring  an  action  of  trespass,  for 
entering^on  the  land  and  burning  the  mill  of  the 
intestate  in  his  life  time,  (i) 

In  all  cases,  debts  and  damages  recovered  by  the 
executor  or  administrator  are  assets  (k) 

But  where  the  cause  of  action  accrued  before  the 
testator's  death,  neither  debts  nor  damages  are  assets, 

(a)  3  Bac.  ab.  60.  Off.  Ex.  71.  109.  Herrv.  Slough.  Ib.  111.  Ad- 

(6)  1  Sid.  82.  Off.  Ex.  66.  dleman  v.  Way.  4  Yates  218. 

(c)  Corn.  Dig.  Adm.  B.  13.  (A)  Mather  v.    Trinity  Church.  3 

\d]  Toll.  Ex.  159.  Sergt.  &  R.  512. 

(e)Lat.  168,  169.  243.  Jones  174.  (i)  Griswold    v.    Brown.    1   Day's 

(/)  I  Vent.  187.  Off.  Ex.  68.  cas.  150. 

(g-)  Shenk  v.  Mundorf.  2  Browne,  (fc)  Toll.  Ex.  r.  157-8-9. 160. 


OHAP.  in.]  OF  C  HOSES  IN  ACTION.  125 

until  received  into  possession,  (a)  unless  the  executor 
release  them;  for  the  release  amounts  to  a  receipt(fe) 
But  where  the  cause  of  action  arises  after  the  death 
of  a  testator,  for  money  paid  by  testator's  debtor  to 
the  defendant,  the  debt  or  damages  shall  be  assets 
immediately;  for  if  received  by  consent  of  executor, 
it  was  assets,  and  bringing  the  action  is  such  a  con- 
sent, that  on  judgment  obtained  it  would  be  assets 
without  execution,  (c) 

Where  the  cause  of  action  accrues,  after  the  death 
of  the  testator,  the  executor  is  equally  entitled  to  the 
debt  or  damages.  He  may  receive  goods  contracted 
for,  by  the  decedent,  and  take  a  lease  covenanted  for 
by  him;  or  if  default  be  made  in  granting  the  lease 
he  may  bring  an  action  for  damages  against  the  de- 
faulter, (d)  So  a  bail  bond  may  be  assigned  to  him 
in  right  of  his  testator,  (c)  He  may  bring  his  action 
for  damages  for  escape,  after  testator's  death  of  a  de- 
fendant in  execution  at  the  testator's  suit.  (/)  He  may 
replevy  goods  taken  after  the  death  of  the  decedent, 

(g) 

If  a  covenant  affect  the  realty  and  breach  be  sub- 
sequent to  testator's  death,  the  heir  and  not  the  exec- 
utor is  entitled  to  damages,  (h) 

The  executor  may  become  entitled  to  the  chat- 
tels of  the  decedent  by  condition,  remainder,  or  in- 
crease, by  assignment,  limitation  and  election. 

He  may  become  entitled  by  condition,  as  where  the 

(a)  11  Vin.  ab.  213.  240.  3  Bac.  tit.         Plowd.  286.  2  P.  W&s.  467. 

Adm.  1  Salk.  207.  (e)  Fortesq.  370. 

(6)  3  Bac.  ab.  tit  Adm.   Hob.   66.  (/)Com.  Dig.  Adm.  B.  13.  Godb. 

C'ro.  Eliz.  43.  262.  1  Roll.  Rep.  276 

(c)  Jenkins  v.  Plume.  1  Salk.  207.  (§•)  Off  Ex.  163. 

(rf)Off.  Ex.82.  11    Vin.  ab.  231.  (A) Toll.  Ex.  36. 


126  OF  EXECUTOR'S  INTEREST.  [BOOK  HI. 

testator  had  granted  a  chattel  on  condition  to  be  per 
formed  by  the  grantee,  and  the  condition  be  not  per- 
formed, the  chattel  returns  to  the  executor,  (a)  or 
where  a  chattel  is  mortgaged  for  the  payment  of  a 
sum  of  money  redeemable  by  the  testator,  or  his  ex- 
ecutor, and  the  executor  redeems.  (6)  If  the  redemp- 
tion be  made  with  the  money  of  the  testator,  the  chat- 
tel is  assets,  if  with  the  money  of  the  executor,  it  is 
assets  for  the  value  above  the  redemption  money,  (c) 

If  the  executor  redeem  the  chattel  at  its  full  value, 
he  becomes  thereby  a  purchaser  to  his  own  use.  (d) 
But  if  he  redeem  after  the  day  set  for  redemption  he 
is  still  answerable  for  the  value  of  the  chattel,  not- 
withstanding the  old  opinion  that  he  might  then  law- 
fully purchase  for  himself,  (e) 

And  if  an  executor  or  administrator  compound 
debts  or  mortgages  and  buy  them  in  for  less  than  is 
due  upon  them,  although  he  do  it  with  his  own 
money,  he  is  not  to  have  the  advantage  to  himself  (/) 
And  where  the  assignees  of  a  bankrupt,  after  his  de- 
cease, assigned  choses  in  action,  and  other  personal 
estate  of  the  bankrupt  to  his  executor  for  his  own  use 
and  benefit,  he  having  paid  a  consideration  therefor 
out  of  his  own  money,  he  was  nevertheless  held  ac- 
countable for  the  same,  to  the  creditors  and  legatees  of 
the  bankrupt,  (g) 

The  executor  may  become  entitled  to  the  chattels 
of  the  testator  by  remainder  or  increase,  as  where  a 

(a)  Off.  Ex.  76.  Toll.  Ex.  184.  (d)  Kellw.    63. 

(b)  Off.  Ex.  76.   77.  Cortelyon  v.     (e)  Off.  Ex.81. 

Lansing,  2  Caines  Cas.  260.  (/)  Daws  v.  Boyleston,  9  Mass.  T 

(c)Off.  Ex.  79.  2  Fonbl.  404.  n.  s.         R.  337. 
9  Mass.  T.  R.237.  (g )  lb. 


CHAP,  in.l  OF  EXECUTOR'S  INTEREST.  127 

lease  is  granted  to  the  testator  for  life,  remainder  to 
his  executor.  This  remainder  is  assets  in  the  hands 
of  the  executor.  Or  where  such  lease  is  given  by 
will  to  A,  for  life,  and  on  his  death  to  B,  and  B  dies 
before  A,  although  the  term  were  never  in  B,  yet  it 
shall  devolve  on  his  executors  and  be  assets:  So  a  re- 
mainder in  a  term  for  years,  though  it  never  was  in 
the  testator's  possession,  and  though  it  continue  a  re- 
mainder shall  go  to  the  executor  and  be  assets;  for  it 
bears  a  present  value  and  is  capable  of  being  sold. 
The  young  of  cattle  and  wool' of  sheep,  produced  af 
ter  decedent's  death,  are  assets,  (a)  So  if  an  executor 
of  a  lessee  for  years  enter  on  the  lands  demised,  the 
profits  over  and  above  the  rent  shall  be  so  regarded. 

(*•) 

A  trade  generally  speaking  is  determined  by  the 
death  of  the  trader;  yet  in  case  of  partnership  it  may 
subsist  for  the  benefit  of  the  executor,  if  the  agree- 
ment for  partnership  contain  such  a  provision,  or  it 
may  so  subsist,  in  case  the  testator  by  will  direct  his 
executors  to  carry  on  his  trade  after  his  death,  (c) 
In  these  cases  and  more  especially  in  case  the 
executor  shall  without  authority  take  upon  him- 
self to  carry  on  testator's  trade;  the  profits  shall 
be  assets  for  which  he  shall  be  accountable,  (d)  And 
if  the  capital  stock  be  lessened  by  the  unauthorized 
trade,  the  executor  shall  be  liable  for  the  loss,  (e) 

An  executor  may  also  take  under  the  description 
of  an  assignee,  being  in  law  the  assignee  of  his  testa- 


(a)  Off.  Ex.  83.  Toll.  Ex.  165.  (d)  Toll.  Ex.  167. 

(6)  Ibid.  (e)  Callaghan  v.  Hall.  1  Sergt.  &  11. 
(c)  Toll.  Ex.  166.  Pearce  v.  Cham-         241. 
barlain,  2  Vez.  33. 


128  OF  EXECUTOR'S  INTEREST.          [BOOK  m. 

tor.  .   As  if  A  contract  to  deliver  a  horse  to  B  or  his 

assigns  on  a  given  day,  and  B  die  before  the  day,  de- 

livery should  be  made  to  his  executor,  (a)  So  a  lega- 

cy bequeathed  to  A  and  his  assigns,  if  A  die  before 

payment,  goes  to  his  executors.  (6)    But  where  the 

contract  does  not  enure  to  the  benefit  of  the  testator 

his  executor  shall  not  be  assignee;  as  if  there  be  a  bond 

conditioned  for  the  payment  of  twenty  pounds  to 

whomsoever  the  obligee  should  appoint,  and  he  nomi- 

nated I.  S.  his  executor  ,but  made  no  other  appointment 

it  was  resolved,  that  the  executor  should  not  have  the 

twenty  pounds,  for  he  is  only  an  assignee  in  law,  and 

takes  to  the  use  of  the  testator-,  but  here  the  condition 

was  to  the  use  of  an  actual  assignee,  who  takes  to  his 

own  use.  (e)  So  if  A  be  bound  to  pay  ten  pounds  to  the 

assignee  of  B,  the  obligee,  B's  executor  shall  not  have 

the  ten  pounds:  But  if  A  be  bound  to  pay  ten  pounds 

to  B,  or  his  assignee,  then  the  executor  of  B  shall  be 

entitled,  because  it  was  a  right  vested  in  the  obligee 

himself,  (d) 

An  executor  may  also  be  entitled  in  respect  of  lim- 
itation. A  contingent  or  executory  interest,  whether 
in  real  or  personal  estate,  is  transmissable  to  the  re- 
presentatives of  the  devisee,  when  such  devisee  dies 
before  the  contingency  happens;  and  if  not  before 
disposed  of,  will  vest  in  such  representative,  when  the 
contingency  takes  place,  (e)  As  where  legacies  are 
bequeathed  to  children  to  be  transferred  to  them,  at 
their  respective  ages  of  twenty-one  years,  or  days  of 


(a)  Plowd.  288.  (d)  It  Vin.  ab.  161.  Godb.    192. 

(6)  11  Vin.  ab.  156.  Toll.  Ex.  167.  Toll.  Ex.  170. 

(c)  11  Vin.   ab.  156.   Godb.    192.  (e)  1  Pr.   Wms.  563.  Fearne  Cent. 

Harff.  Co.   Lit.  216.  n.  1.  Toll.  Rera.  444. 

Ex.  168. 


CHAP,  in.]  OF  CHOSES  IN  ACTION.  129 

marriage  and  that  in  case  any  of  them  should  die  un- 
der that  age,or  marry  without  consent,  his  share  should 
go  to  others  at  their  age  of  twenty-one  years.  It  was 
decreed  that  a  share  accruing  by  the  forfeiture  of  a 
child  marrying  without  consent,  vested  in  another 
child,  who  attained  twenty -one,  but  died  before  such 
forfeiture;  so  as  to  entitle  the  personal  representative 
of  such  deceased  child  to  an  equal  share  thereof,  with 
the  other  surviving  children,  (a) 

If  a  legacy  out  of  the  personal  estate  is  bequeathed 
to  A,  to  be  paid  when  he  is  of  the  age  of  twenty-one 
years,  and  he  dies  before  that  time,  his  executors  are 
entitled  to  the  legacy  immediately,  (if  it  be  payable 
with  interest;  if  not,  when  A  would  have  come  of  age.) 

(b)  But  if  such  legacy  be  bequeathed  to  A,  at  his 
age  of  twenty-one  merely,  or  if  he  shall  attain  the  age 
of  twenty-one,  and  he  die,  before  that  period,  his  ex- 
ecutors have  no  title,  (c) 

This  is  the  rule  where  the  interest  arises  out  of 
personal  estate;  but  with  respect  to  all  interest  aris- 
ing out  of  land,  the  rule  is  different.  For,  whether 
the  land  be  the  primary  or  auxiliary  fund,  whether 
the  charge  be  made  by  deed  or  will,  as  a  portion,  or 
general  legacy  for  a  child  or  a  stranger,  with  or  with- 
out interest,  the  general  rule  is,  that  charges  on  land 
payable  on  a  future  day,  shall  not  be  raised  where  the 
party  dies  before  the  day  of  payment,  (d)  This  rule 
is  subject  to  exceptions;  as  where  the  time  of  pay- 

(a)2Atk.  61G.  Toll.Ex.   171.  342. 

(6)  11  Vin.  ab.  160.  Carth.  52.  8  (rf)Toll.  Ex.  172,  &c.  and  autbori- 

Chan.  R.  112.Cloberie's  case,  2  ties  there  cited.  2  Yeates.  369.  5 

Vent.  342.  366.  2  Vern.  1 99.  Binn.  118.3  Yeates,  34. 

(c)  Com.  Dig.  Chan.  3  Y.  8.  2  Vent. 

R 


130  OF  CHOSES  IN  ACTION.  [BOOK  in. 

ment  is  postponed  from  the  circumstances  of  the  fund 
and  not  of  the  person,  (a) 

In  respect  of  those  cases  in  which  portions  have 
been  given  out  of  land,  and  no  time  of  payment  ex- 
pressed, it  seems  difficult  to  reconcile  the  determina- 
tions. According  to  one  class,  their  interest  is  vested 
immediately,  and  transmissable;  according  to  another, 
such  portion  shall  not  vest  if  the  children  die  before 
they  want  them.  (&) 

But  if  land  be  devised  for  the  payment  of  portions, 
and  one  of  the  children  entitled  to  a  portion,  die  after  it 
become  due,  though  before  the  lands  are  sold,  the 
personal  representatives  of  such  child  will  clearly  be 
entitled  to  the  money,  (c) 

Where  both  real  and  personal  estate  are  charged 
with  a  legacy  the  executor  shall  take  so  far  as  the 
former  will  go,  though  the  infant  legatee  die  before 
the  time  of  payment,  but  so  far  as  it  is  charged  upon 
the  land  the  legacy  shall  sink,  (d) 

An  executor  may  also  claim  by  election;  as  where 
the  testator  at  the  time  of  his  death  was  entitled  out 
of  several  chattels  to  take  his  choice  of  one  or  more, 
to  his  own  use.  If  nothing  passes  to  a  grantee  before 
election,  it  ought  to  be  made  in  his  life  time,  (e)  But 
where  an  interest  vests  immediately  by  the  grant, 
the  election  may  be  made  by  the  executor  as  well  as 
by  the  party  himself.  (/)  So  if  the  election  determine 
only  the  manner  or  degree,  in  which  the  thing  shall 

(o)  Toll.  Ex.  173.   and  authorities  (c)  Vin.  ab.  163.  1  Vern.  276.  Toll. 

cited.  Stone's  Admrs.  v.  Massey,  2         Ex.  174. 

Yeates,  368.  Weishauptv.  Breh-  (d)  Duke  of  Chandos  \.  Talbot,  2 

man.   5    Bioa.    118.    Sword    r.         P.  Wm.  613. 

Adams,  3  Yeates,  34.  (e)  Com.  Dig.  Election  B. 

(6)  Toller  Ex.  174.  (/)  Harg.  Co.  Lit.  145. 


CHAP.  rn.J  INTEREST  OF  EXECUTOR.  131 

be  taken,  the  executor  as  well  as  the  grantee  himself, 
may  make  it;  for  in  such  case  also,  there  is  an  imme- 
diate interest,  (a)  As  if  a  lease  be  granted  to  A,  for 
ten  or  twenty  years,  as  he  shall  elect,  the  executor  is 
entitled  to  the  election,  (b) 

There  is  a  discrimination  in  the  English  law,  be- 
tween the  chattels  real  and  personal,  which  go  to  the 
heir,  and  such  as  go  to  the  executor.  This  arises  from 
the  conflicting  interests  of  the  two  representatives  of 
the  decedent  in  that  country.  It  is  otherwise  here. 
The  eldest  son  is  not  the  heir  to  the  exclusion  of  his 
brothers  and  sisters;  and  the  same  persons  divide  the 
real  and  personal  estate  among  them  equally. 

It  is  true  that  the  real  and  personal  estate  make 
two  funds;  the  one  passing  to  the  children  or  nearest 
relatives  of  the  decedent,  if  he  die  intestate;  or  if  he 
die  testate,  to  his  devisee;  the  other  passing  to  the  ad- 
ministrator, to  be  distributed  after  the  payment  of 
debts,  in  case  of  intestacy,  to  those  who  have  taken 
the  real  estate,  and  in  case  of  testacy  to  the  legatees. 

Yet  it  may  happen  that  the  heirs  or  kindred  of  the 
decedent,  by  the  perception  of  the  rents  and  profits 
of  the  real  estate,  will  obtain  possession  of  funds  which 
consistently  with  the  spirit  of  our  laws,  should  go  to 
the  executor  or  administrator.  Such  rents  and  pro- 
fits belong  of  right  to  the  executor,  because  in  justice 
and  equity,  all  the  estate  of  the  decedent  being  de- 
voted and  pledged  for  the  payment  of  his  debts,  the 
heir  can  have  no  right  to  the  profits  of  the  lands, 
which  should  follow  the  destination  of  the  capital  from 
which  they  issue.  If  the  personalty  be  exhausted  the 

(a)  Harg.  Co.  Lit.  144.  (ft)  Toll.  Ex.  175. 


[32  INTEREST  OF  EXECUTOR.  [BOOK  HI. 

real  estate  may  be  sold  by  the  executor  or  adminis- 
trator, for  the  payment  of  debts,  and  even  this  some- 
times proves  insufficient. 

In  such  case,  it  is  important  to  inquire  whether  the 
executor  or  administrator  can  compel  the  heir  or  distri- 
butee to  refund  the  profits  of  the  real  estate.  And  if  he 
can  be  compelled,  what  is  the  proper  form  of  action? 

The  right  of  the  personal  representative  to  recover 
from  the  heir  is  supported  by  all  the  principles  which 
give  the  real  estate  of  the  decedent,  to  the  creditor 
in  preference  to  the  heir.  And  these  principles  are 
obvious,  and  just.  Yet  against  them  is  arrayed  all 
the  force  of  technical  distinction  and  form. 

The  profits  of  the  realty  are  embraced  by  no  defi- 
nition of  chattels  which  pass  to  the  executor.  They 
are  neither  choses  in  possession  nor  in  action,  at 
the  death  of  the  testatator.  They  are  the  profits 
of  the  estate  of  the  heir,  which  fall  upon  him,  at  the 
instant  of  his%  ancestor's  death.  He  is  devested  of 
this  estate,  only  by  the  decree  of  a  competent 
court,  followed  by  a  sale,  by  which  it  is  converted 
into  assets  for  the  payment  of  the  debts.  Nor  in 
case  of  intestacy  is  the  administrator  qualified  to  re- 
ceive these  profits.  He  has  given  no  security.  There 
is  no  one  authorized  to  take  such  security.  The 
register  pursuant  to  law  takes  bond  in  a  sum  suffi- 
cient, to  cover  the  personal  property  alone,  and  the 
Orphan's  Court,  can  direct  security  to  be  given,  only 
for  the  value  of  real  estate  sold. 

Secondly,  in  what  form  should  the  action  be  brought? 
Debt?  There  is  no  privity  of  contract  nor  of  estate  be- 
tween the  executor  and  heir.  Assumpsit  for  money 
had  and  received?  The  heir  has  received  the  profits, 


CHAP,  in.]  INTEREST  OF  EXECUTOR.  133 

as  of  right,  not  as  an  agent  of  the  executor,  or  admin- 
istrator.    He  claims  them  under  a  title  which  justi 
fies  his  entry,  and  perception  of  them. 

It  would  seem  therefore,  that  though  in  conformi- 
ty with  strict  justice  arid  established  principles  the 
heir  should  account  to  the  creditors  through  the  ad- 
ministrator for  such  rents  and  profits,  the  law  has  not 
provided  any  means  of  compulsion,  (a)  It  is  a  case 
therefore  for  the  consideration  of  the  legislature. 

But  though  the  executor  or  administrator  can  have 
no  action  against  the  heir,  a  creditor  by  specialty  may, 
because  the  heir  is  bound  by  the  descent  of  assets 
and  the  rents  and  profits  are  assets  in  this  sense.  (6) 

Although  between  the  executor  and  heir,  there 
can  seldom  be  a  dispute  with  regard  to  chattels,  it 
may  be  otherwise  between  the  executor  and  devisee 
in  relation  to  the  chattels  annexed  to  the  freehold.  We 
are  therefore  to  consider  what  chattels  are  deemed 

to  be  so  annexed. 

• 

Of  personal  animal  chattels,  deer  in  a  park,  hares  or 
rabbits  in  warren,  doves  in  a  dove  house,  pheasants 
and  partridges  in  a  mew,  swans  though  unmarked  in  a 
private  pond  or  at  large  if  marked;  bees  in  a  hive,  or 
as  some  authorities  hold  it,  not  in  a  hive,  and  fish  in 
a  pond,  shall  all  go  with  the  inheritance,  (c) 

Of  personal  vegetable  chattels  not  only  timber 
trees,  as  oak,  beech,  chestnut,  walnut,  ash,  elm,  cedar, 
fir,  asp,  lime,  sycamore,  birch,  alder,  larch,  maple, 
&c.  but  also  trees  of  every  other  description  belong- 
ing to  the  soil,  unless  severed  during  the  life  of  the 

(a)  Hays  v.  Jackson,  6  Mass.  R.         259.  6  Mas.  Rep.    152. 

14  .  (c)  Toll.  Ex.  19-2-3.  liar.  Co.   LiU. 

(5)  Brown's  cases  in  Chancery,  257,         8  Off.  Ex.  53.  2  Bl.  Com.  427. 


134  INTEREST  OF  EXECUTOR.  [BOOK  m. 

devisor  are  the  property  of  the  devisee,  (a)  So  are  all 
species  of  fruits  on  the  tree,  grass  growing,  hedges 
and  bushes,  as  natural  and  permanent  profits  of  the 
earth.  (6)  And  the  devisor  shall  have  the  corn  and 
other  fruits  of  annual  industry  which  usually  pas- 
ses to  the  executor,  as  against  the  heir,  (c) 

Personal  chattels  inanimate  which  pass  to  the  devi- 
see,are  heir  looms,  or  such  things  as  having  the  charac- 
ter of  chattels  cannot  be  separated  from  the  freehold 
without  injury  thereto.  Such  as  chimney  pieces, 
pumps,  tables  and  benches  which  have  been  long  fixed, 
coppers,  leads,  pales,  posts,  rails,  windows,  wainscots, 
doors,  locks,  keys,  millstones  fixed  to  a  mill,  anvils  and 
the  like,  pictures  and  looking  glasses  put  up  instead 
of  wainscot,  the  devisee  having  a  right  to  the  house 
undefaced.  (d) 

The  leaning  of  modern  times  is  against  heir  looms; 
and  where  they  can  be  detached  without  injury  to  the 
freehold,  they  will  go  to  the  executor.  Thus  tables, 
although  fast  to  the  floor,  grates,  iron  ovens,  jacks, 
clock  cases,  in  whatever  mode  annexed  to  the  free- 
hold; hangings,  tapestry,  beds  fastened  to  the  ceiling, 
iron  backs  to  chimneys;  and  in  favour  of  trade,  brew- 
ing vessels,  vats  for  dyers  and  soap  boilers,  coppers, 
furnaces  fixed  to  the  freehold  and  purchased  with  the 
house;  a  cider  mill  erected  on  the  lands,  a  fire  engine 
set  up  for  the  benefit  of  a  colliery,  in  some  cases  are 
all  considered  as  assets  in  the  hands  of  the  executor,  (e) 

In  respect  of  the  rights  of  the  executor  of  tenant 

(a)  Off.  Ex.  59.  Bac.  ab.  tit.  Adm.  (e/)Toll.  Ex.  197.  L.  of  Test;  380, 

(6)  Toll.  Ex.  202.  Swinb.  934,  935.  381.  2  Van.  508. 

p.  7.  s.  10.  (e)  Toll.  Ex.  191.  to  200.  Off.  Ex. 

(c)  Winch.  51.  L.  of  N.  P.  34.  « I.  4  Burns.  EC.  L,  256. 

Swinb.  933.  2  Bl.  Corn.  428. 


OHAP.  HI.]          INTEREST  OF  EXECUTOR.  135 

for  life,  as  opposed  to  those  of  the  remainder  man,  it 
is  a  general  rule,  that  where  a  party  hath  an  uncer- 
tain interest  in  lands,  and  his  estate  determines,  yet 
he  hath  a  title  to  the  corn  that  is  sown,  and  the  other 
emblements  on  the  land,  though  the  property  of  the 
soil  be  altered.  («) 

With  the  view  of  giving  encouragement  to  agricul- 
ture, the  law  has  created  a  property  in  the  emble- 
ments distinct  and  separate  from  that  of  the  soil,  and 
has  provided  that  such  property  shall  be  at  the  entire 
disposal  of  the  owner,  that  he  may  not  decline  cultiva- 
tion, lest  the  harvest  should  be  reaped  by  a  stranger. 
Moreover,  the  tenant  who  has  sown  has  acquired  a 
property  in  the  corn  by  his  expense  and  labour.  It 
was  his  own  in  its  original  state,  and  before  it  was 
committed  to  the  earth;  and  his  property  shall  not  be 
devested  by  its  being  sown  on  his  own  ground,  and 
the  less  because  of  the  skiL  and  industry  he  has 
employed  in  raising  it.  (6)  Therefore  if  such  ten- 
ant sow  the  land,  and  die  before  severance,  inasmuch 
as  the  estate  was  uncertain  and  was  determined  by 
the  act  of  God,  his  executor  shall  have  the  corn,  and 
he  may  take  it  off  the  ground  of  the  remainder  man. 

w 

The  principles  which  give  the  emblements  to  the 
tenant  for  life",  the  duration  of  whose  estate  is  uncer- 
tain, may  justly  have  a  more  extensive  operation. 
The  encouragement  of  agriculture,  and  the  labour  of 
the  tenant,  equally  call  for  permission,  to  the  tenant 

• 

(o)Gilb.  L.ofEv.  240.  (c)  Gilb.  242.  Bar.  Co.  Litt.    556, 

(b)  Gilb.  L.  ofEv.  240.  1  Toll.  Ex.         &60.  116.  Roll.  ab.  726.  727. 
204. 


136  INTEREST  OF  EXECUTOR.  [BOOK  in. 

for  years,  the  duration  of  whose  term  is  certain;  to  take 
away  the  crop  he  has  sown,  though  it  ripen  after  the 
termination  of  his  lease.  A  custom  to  this  effect  was 
limited  to  a  particular  part  of  England  (a)  and  per- 
vades our  state,  (b) 

The  question  as  to  the  right  of  such  tenant,  was 
first  made  at  Lancaster,  JVtsi  Prius,  in  June,  1 782; 
between  Michael  Diffedorfer  and  others,  plaintiffs,  and 
John  Jones  defendant.  The  agents  of  forfeited  es- 
tates had  leased  to  the  defendant  the  lands  of  Michael 
Whitman,  an  attainted  traitor,  for  one  year  from  May, 
1778,  till  May,  1779,  at  a  certain  rent,  and  the  lease 
was  continued  for  a  second  year,  ending  the  first  of 
May,  1780.  The  agents  under  the  order  of  the  su- 
preme executive  council  sold  the  lands  to  the  plain- 
tiffs in  August,  1779,  and  for  the  wheat  and  rye  put 
in  during  the  fall  of  that  year,  and  reaped  in  the  fol- 
lowing year  a  replevin  was  brought.  Several  witnesses 
including  two  of  the  jurors,  were  examined  as  to  the 
custom  of  the  country,  that  tenants  for  years  who  did 
not  receive  crops  at  the  commencement  of  their  leas- 
es, were  entitledfto  take  off  the  crops  which  had  been 
sown  during  the  continuance  of  their  leases.  The 
Court  were  clearly  of  opinion,  that  the  defendant  was 
entitled  to  the  crop  which  he  had  put  in  during  his 
lease,  and  the  jury  found  accordingly,  (c) 

In  the  case  of  Stultz  v.  Dickey,  (d)  which  was  an 
action  of  trespass  quare  clausamfregit  for  breaking  and 
entering  plaintiff's  close,  and  cutting  and  carrying 
away  certain  crops  of  wheat  and  rye,  it  was  determi- 
ned that  a  lessee  for  years  may  give  in  evidence  that 

(a)  Douglass  199.  Dickey.  5  Binn.  289. 

(6)  Stultz  v.  Dickey,  5  Binn.   288.  (d)  5  Binn.  285.  see  also  Biggs  v. 

(c)  Stated  by  Yeates  in  Stultz    v.  Brown,  2  Serg.  &R.  14. 

^b  •    *       ,  ^£ 


CHAP,  in.]          INTEREST  OF  EXECUTOR.  137 

by  the  custom  of  the  country  he  is  entitled  to  the  way 
going  crop,  though  it  is  not  specially  stated  in  his 
declaration,  and  though  he  held  under  a  written  lease 
which  gave  no  such  right;  That  this  custom  extends 
throughout  the  state,  and  enters  into  every  contract 
to  which  it  applies:  That  a  tenant  entitled  to  the  way 
going  crop,  who  enters  and  warns  a  third  person 
not  to  cut  it;  may  maintain  trespass  against  the  wrong- 
doer, notwithstanding  he  had,  previously  to  the  tres- 
pass, given  the  landlord  possession  of  the  farm,  in  a 
part  of  which,  the  crop  was  growing.  But  that  a  tenant 
who  had  underlet  a  part  of  his  farm  to  another,  and 
then  surrendered  possession  as  before,  cannot  recover 
damages  for  cutting  the  crop  put  in  by  his  undertenant. 

But  the  undertenant  may  have  an  action  against 
the  remainder  man  who  cuts-and  takes  away  his  corn: 
(a)  He  may  support  trespass  for  it  against  the  land- 
lord or  his  vendee  after  the  lease  expired,  even 
though  the  purchaser  has  obtained  possession  by  a 
habere  facias  possessionem  on  a  judgment  in  eject- 
ment, obtained  by  a  landlord  against  a  former  tenant 
And  the  record  in  the  ejectment  is  not  a  justifica- 
tion of  a  trespass  by  a  purchaser.  (6) 

The  interest  thus  vested  in  the  tenant  passes  ot 
course  to  his  executor  or  administrator. 

If  A  seized  in  fee  of  land,  sow,  and  then  convey  to 
B,  and  die  before  severance,  the  corn  shall  belong  to 
B,  because  every  man's  grant  is  to  be  taken  most 
strongly  -against  himself,  (c)  and  shall  pass  not  only 
the  land  itself,  but  the  chattels  that  are  incident  to  it. 

(a)  Biggs  v.  Brown.  2  Scrgt.  &  R.  14.         (<•)  Gilb.  L.  of  Ev.  247. 
(6)  Ibid. 


138  INTEREST  OF  EXECUTOR.  [BOOK  in. 

If  A  seized  in  fee  sow  land,  and  give  it  to  B  for 
life,  and  they  both  die  before  severance,  it  shall  go 
to  A;  for  when  the  force  of  the  donation  is  spent  the 
property  shall  result  to  the  donor,  (a) 

A  tenant  for  the  life  of  another,  is  considered  by 
the  law  in  regard  to  emblements,  in  the  same  light 
as  a  tenant  for  his  own  life,  (fc) 

The  lessees  of  tenants  for  life  at  common  law,  on 
the  death  of  the  lessors,  exercised  the  unreasonable 
privilege  of  quitting  the  premises,  and  paying  rent  to 
nobody  for  the  occupation  of  the  land  subsequently  to 
the  last  quarter  day,  or  other  day  assigned  for  the 
payment  of  rent.  For,  the  representative  of  the  ten- 
ant for  life  could  maintain  no  action  for  use  and 
occupation,  much  less,  in  case  there  were  a  lease;  nor 
had  the  remainder-man  such  a  right  because  the  rent 
had  not  accrued  due,  in  his  time,  (c)  To  reme- 
dy this  hardship,  it  was  enacted  by  11  Geo.  II,  c.  19, 
§  15,  adopted  here,  (d)  that  the  executors  of  tenant 
for  life,  on  whose  death  any  lease  determined,  shall 
in  an  action  on  the  case,  recover  of  the  lessee  a  rate- 
able proportion  of  rent  from  the  last  day  of  payment, 
to  the  death  of  such  lessor. 

SECTION  IV. 

Of  the  chattels  which  survive  to  the  wife. 
The  interest  in  the  chattels  real,  is  either  vested, 
possible  or  contingent. 

Vested,  as  estates  for  years  and  mortgages;  possible 

(a)Gilb.L.  of  247.  Ev.  Hob.  132.  384.  1  Pr.  Wms.  392.  Paget  r. 

(A)  2  Bl.  Com.  123.  1  Holl.  ab.  655.  Gee,  Arab.  198.  Toll.  Ex.  208. 

Toll.  Ex .  208 .  (d)  Report  of  Judges  Rob.Dig.  236. 
(c)  2  Bl.  Com.  124.  1  Fonb.  2d  Ed. 


CHAP,  in.]  CHATTELS  OF  THE  WIFE.  139 

or  contingent,  as  where  a  term  for  years  is  devised 
to  A  for  life  and  after  A's  death  to  B.  B's  interest  in 
the  residue  of  the  term  operates  by  way  of  executory 
devise,  and  is  a  possibility.  But  if  an  estate  be  lim- 
ited to  A  for  life,  and  after  his  decease,  if  B  die  in 
A's  life  time,  to  C  for  a  term  of  years,  this  operates 
not  as  an  executory  devise,  but  as  a  remainder,  and 
therefore  is  considered  as  a  contingent  interest,  (a) 

By  the  marriage,  the  husband  acquires  a  right  to 
such  chattels  real  in  the  nature  of  a  jointenancy  with 
the  wife,  subject  to  alienation  by  the  husband  in 
his  life  time.  (6)  If  he  make  no  alteration  of  the  pro- 
perty, it  will  on  his  death,  survive  to  the  wife  and 
shall  not  go  to  his  executor,  (c)  But  he  may  sell, 
surrender,  or  otherwise  dispose  of  such  interest, 
whether  vested,  possible  or  contingent,  unless  the  pos- 
sibility or  contingency  be  of  such  a  nature  that  it  can- 
not happen  during  his  life;  (d)  or  unless  the  future  or 
executory  interest  in  a  term  or  other  chattel  were 
provided  for  the  wife  with  the  consent  of  the  husband 
before  marriage;  for  in  that  case  his  disposition  of  it, 
would  be  a  breach  of  his  own  agreement,  (e) 

But  if  the  husband  grant  the  term  on  condition  that 
the  grantee  shall  pay  a  sum  of  money  to  his  executors 
and  the  condition  be  broken  and  the  executors  enter; 
(/)  if  the  husband  and  wife  be  ejected,  and  the  hus- 
band bring  ejectment  in  his  own  name  only  and  re- 
cover; (g)  if  he  submit  the  term  to  the  arbitration  of 

(a)  Toll.  Ex.  213.  Harg.  Co.  Litt.  (d)  10  Co.  51.  Har.  Co.  Litt.  46.  b. 

351.  n.  1.  (e)  Har.  Co.  Litt.  351 .  n.   1. 

<&)   Plowd.  418.  2  Bl.  Com.  435.  (/)  Com.  Dig.Baron  &  Femme,  B. 

Lodge  v.  Hamilton,  2  Serp.  &  R.  2.  Harg.  Co.  Litt.  46.  b. 

492.  (^)  i  Roll.  Rep.  359.  liar.  Co.  Utt. 

(c)  Toll.  Ex.  214.  46.  b. 


140  CHATTELS  OF  THE  WIFE.  [BOOK  in. 

A  who  awards  it  to  B,  (a)  in  all  these  cases  he  makes 
a  disposition  of  the  term  which  serves  the  jointenancy, 
and  vests  it  in  him  absolutely.  (&) 

The  husband  may  make  a  lease  of  the  term  to  com- 
mence after  his  death,  which  shall  be  good,  although 
the  wife  survive,  (c)  But  he  cannot  charge  such  chattel 
real  beyond  the  coverture:  as  if  he  grant  a  rent  charge 
out  of  the  term,  and  the  wife  survive,  she  may  avoid 
the  charge,  for  by  her  survivorship,  she  is  remitted  to 
the  term,  of  which  the  coverture  did  not  devest  her.(rf) 
So  if  the  husband  lease  the  wife's  lands,  and  die,  she 
may  avoid  the  lease,  and  acceptance  of  rent,  or  other 
act  by  her,  after  his  death  will  not  confirm  it.  (e)  Such 
term  is  not  bound  by  judgment  against  him,  so  that  exe- 
cution may  be  issued  after  his  death.  (/)  Nor  has  his 
disposition  of  any  part  of  the  term,  the  effect  of  a  dis- 
tribution of  the  whole.     For  if  the  husband  possessed 
of  a  term  of  forty  years  in  right  of  his  wife,  grant  a 
lease  for  twenty  years,,  reserving  rent  and  die,  the 
executors  of  the  husband  shall  have  the  rent,  for  it 
was  not  incident  to  the  reversion-,  yet  the  wife  as  she 
was  not  party  to  the  lease  shall  have  the  residue  of 
the  term,  (g)     If  the  husband  and  wife  mortgage  the 
term,  and  the  husband  pay  the  money,  and  enter  and 
die,  the   wife  shall  have  it.  (h)     If  the  wife  and  the 
husband  were  jointenants  of  a  rent  charge,  for  their 
lives,  the  wife  in  case  she  survives  shall  have  the  ar- 
rears incurred  during  the  coverture,  (t)     If  the  term 
be  extended,  the  wife  shall  have  the  term  after  the 

(o)  Dyer,  183.  Rep.  81. 

(6)  Toll.  Ex.  215.  (/)  1  Roll,  abr,  344,  346. 

(c)  Cro.  Eliz.  287.  Poph.  5.  (g)  Harg.  Co.  Litt.  46.  b. 

(d)  Harg  Co.  Litt.  351.  Plowd.418.  (A)  1  Roll.  344. 

(e)  Campbell  v.  Hollaway,  7  John  (i)  1  Roll  ab.  350.  Moore,  887. 


CHAP,  ni.]  CHATTELS  OF  THE  WIFE.  141 

extent  is  satisfied,  (a)  If  the  husband  and  wife  make 
a  lease  reserving  rent,  and  she  assent  after  the  death 
of  the  husband,  she  shall  have  the  arrears  incurred 
in  his  life  time,  (b) 

If  a  recognizance  be  taken  in  the  Orphan's  Court, 
for  the  wife's  share  of  land,  in  the  name  of  husband 
and  wife  in  right  of  the  wife,  and  be  not  reduced  into 
possession,  or  disposed  of  by  the  husband,  it  survives 
to  the  wife,  although  the  husband  die  indebted,  (c) 
And  a  divorce,  a  vinculo  mah-imonii  for  the  adultery  of 
the  wife,  makes  no  alteration  in  her  right,  if  the  hus- 
band do  no  act  to  affect  it.  (d)  And  this  right  is  good 
against  his  creditors,  unless  he  stood  in  the  light  of  a 
purchaser  of  her  property  in  consequence  of  marriage 
articles,  or  some  agreement  made  on  a  valuable  con- 
sideration, (e)  But  the  husband  before  the  divorce 
might  have  released  or  assigned  the  recognizance. 
In  this  case  the  court  declined  to  consider  what  rights 
the  husband  possessed  over  this  property,  if  any,  after 
the  divorce.  But  in  Massachusetts  it  has  been  decid- 
ed that,  choses  in  action  not  reduced  into  possession 
by  the  husband,  remain  to  the  wife  after  divorce  a 
vinculo,  (/) 

The  husband  may  extinguish  a  wife's  chose  in  ac- 
tion by  a  release  and  in  equity  assign  a  possibility  to 
which  she  is  entitled,  so  that  the  court  will  decree 
a  specific  performance  when  the  right  vests,  if  the  as- 
signment be  made  for  a  valuable  consideration,  (g) 
A  legacy  to  the  wife  of  a  bankrupt  is  a  mere  pos- 

(a)  1  Roll.  ab.  344.  Legg. 

(6)lb.  350.  (e)Ibid. 

(c)  Lodge  v.  Hamilton,  2  Sergt.  &  (/)  Legg  v.  Legg,  7  Mass.Rep.  99. 

R.  493.  (g)  Krumbaar  v.  Burt,  &  al.  C.  C. 

(d~)  II).  7  Mass.  Rep.  99.  Legg  v.  Ms.  Rep,  Whart.  Dig.  297. 


142  CHATTELS  OF  THE  WIFE.  [BODKIU. 

sibility  which  did  not  pass  to  the  assignees  of  the  hus- 
band under  the  act  of  1800.  (a) 

In  case  the  wife  die  before  the  husband  all  the 
chattels  real  of  the  wife,  in  which  there  is  a  vested 
interest,  become  absolutely  his,  by  survivorship,  with- 
out administration,  (b)  But  to  entitle  himself  to  such 
chattels  not  vested,  he  must  become  her  administrator. 

(c)  If  he  die  pending  the  contingency  on  which  her 
property  depends,  his  representative  is  entitled,  as 
well  to  this  species  of  lier  property,  as  to  any  other. 

(d)  And  if  administration  be  granted  to  the  next  of 
kin  of  the  wife,  such  grantee  is  regarded  in  equity  as 
a  mere  trustee  for  the  representative  of  the  husband. 

w 

If  the  tenant  in  dower  grant  a  lease  for  years,  and 
marry  and  die,  the  husband  shall  have  the  rent  in  ar- 
rear  in  the  wife's  life  time.  (/)  And  by  the  Stat.  32, 
Hen.  VIII,  C.  37,  arrears  of  rent  due  as  well  before, 
as  after  coverture  to  the  wife  seized  in  fee,  in  tail,  or 
for  life,  are  on  her  death  given  to  the  husband,  (g)  If 
a  wife  were  possessed  at  her  marriage,  of  a  trust  term 
to  her  separate  use,  the  surviving  husband  shall  be 
entitled  to  it,  except  in  special  cases;  (h)  as,  if  before 
marriage,  it  was  settled  on  her  with  the  assent  of  the 
husband,  (i)  If  the  husband  and  wife  mortgage  a  term 
of  the  wife,  and  the  husband  survive,  he  shall  have 
the  equity  of  redemption,  (k) 

(a)  Krumbar  v.  Burt,  Sf  al.  C.  C.  (/)  Moore,  7. 

Ms.  Rep.  Whart.  Dig.  297.  (g)  Rep.  of  the  Jud.  Rob.  Dig.  219. 

(6)  Co.  Litt.  300.  Com.  Dig.  Baron  (h)  Com.  Dig.  Baron  £  Femme,  E. 

&  Femme,  E.  2.  2.  1  Fonb.  98.  1  Vern.  7,  18.  2 

(c)  Ibid.  2  Roll.  ab.  345.  Vern.  270.  2  Atk.  4,  21. 

(d)  Harg.  Co.  Litt.  351,  Note  1.         (i)  Com.  Dig.  Chan.  2  M.  9.  Harg. 

(e)  I  Toll.  Ex.  217.  sed.  vide.  Harg.          Co.  Litt.  351.  n.  1. 
Co.  Litt.  351, note  1. 1  Elargrave,     (fc)  Hob.  3. 

L.  T,  475,  jn  note. 


OHAP.III.]  CHATTELS  OF  THE  WIFE.  14$ 

If  the  husband  sow  the  land  of  which  he  is  seized  in 
right  of  his  wife  and  she  die,  he  shall  have  the  profits: 
(a)  Or  if  he  die  before  the  wife  and  before  severance, 
his  executors  shall  be  entitled  to  them;  but  it  seems, 
that  in  the  event  of  his  so  dying,  if  the  lands  were 
sown  before  the  marriage,  the  wife  shall  have  the 
profits  and  not  the  executors  of  the  husband;  for  the 
corn  committed  to  the  ground  belongs  to  the  freehold, 
and  is  not  transferred  to  the  husband;  and  therefore 
as  it  was  undisposed  of  in  his  life  time,  it  devolves  to 
the  wife,  (b)  But  if  the  husband  and  wife  be  jointe- 
nants,  and  he  sow  the  land  and  die,  the  corn  shall  go 
to  the  executor  of  the  husband,  for  the  land  is  not  cul- 
tivated with  a  joint  stockj  the  corn  is  altogether  the 
property  of  the  husband,  and  shall  not  be  lost,  (c) 

Chattels  personal,  or  choses  in  action  do  not  vest  in 
the  husband,  until  he  receives  or  recovers  them  at 
la\v;  when  reduced  into  possession,  they  become  his 
absolute  property,  (d)  For  such  choses  in  action  as 
vested  in  the  wife  before  marriage,  the  husband  and 
wife  must  sue  jointly;  (e)  for  such  as  accrued  after,  he 
may  sue  in  their  joint  names,  or  alone  at  his  pleasure. 


If  he  join  her  in  action,  recover  judgment,  and  die, 
the  judgment  will  survive  to  the  wife;  because  the 
joint  action  indicates  a  disposition  to  preserve  their 
interest  united,  and  does  not  in  law  sever  them: 
Therefore  the  wife  is  entitled  to  scire  facias  on  the 

(a)  Gilb.  L.  of  Ev.  245.  Harg.  Co.  (e)  Com.  Dig.  Baron  &  Femme,  V. 

Litt.  note  1.  55.  b.  1  Roll.  ab.  347.  Ow.  82.  Cro. 

(M  ib.  Ib.  Eliz.  537.  2  Ves.  676.  1  Sid.  2,  5. 

tc\  ib.  Ib.  (/)  2  Lev.  107.  3  Lev.  402.  al.  36.  2 

(d)  2  Bl.  Com.  434.  Harg.  Co.  Litt.  Pr.  Wms.  497.  Vid-  7.  T.  R.  349. 

351. 


144  CHATTELS  OF  THE  WIFE.  [BOOK  in. 

judgment,  (a)  And  it  is  said  that  if  he  sue  alone,  and 
die  before  execution,  his  wife  and  not  his  executors 
is  thus  entitled.  (6) 

If  the  husband  die  before  he  proceed  to  reduce  such 
chattels  into  possession  they  with  greater  reason  sur- 
vive to  the  wife,  (c)  But  if  the  husband  empower  an 
agent  to  receive  a  debt  or  legacy  due  to  the  wife, 
and  the  agent  receive  it,  but  before  he  pays  it  over 
the  husband  die,  it  will  go  to  his  executor,  (d) 

In  equity  it  is  held  that  a  settlement  before  mar- 
riage if  made  in  consideration  of  the  wife's  fortune  j  en- 
titles the  representative  of  the  husband  dying  in  her 
life  time  to  her  choses  in  action:  But  it  is  said,  that  if 
it  be  not  made  in  consideration  of  the  wife's  fortune, 
she  will  be  entitled  to  the  things  in  action,  the  pro- 
perty of  which  has  not  been  reduced  by  the  husband; 
if  it  be  in  consideration  of  part  of  her  fortune,  only, 
such  things  in  action  as  are  not  comprized  in  that 
part,  survive  to  the  wife:  and  it  has  been  held  that  in 
all  cases  where  there  is  a  settlement  equivalent  to 
the  wife's  fortune,  it  shall  be  intended  that  the  hus- 
band shall  have  the  portion,  although  there  be  no 
agreement  for  that  purpose,  (e) 

Money  due  on  mortgage  is  a  chose  in  action.  And 
the  husband  is  entitled  to  such  debt,  to  the  wife.  And 
if  lands  be  mortgaged  in  fee  to  the  wife,  she  is  but  a 
trustee,  and  the  trust  of  the  mortgage  follows  the  pro- 
perty of  the  debt.  (/) 

(a)  Com.  Dig.  Baron  teFemme,  V,  (e)  Harg.  Co.  Litt.  351.  note  1.  o 

Har.  Co.  Litt.  351.  n.  1.  Pr.  Wm.  200.  note  D.  Free,  in 

(!>}  3  Atk.  21.  Chan.  63.  412.  2  Vern.  502.  Ca. 

(c)  2  Bl.  Com.  434.  Harg.  Co.  Litt.  Tern.  Talb.  168. 

351.  (/)  Hargraves,  Co.  Litt.  351.  n.  3. 

(rf)  Roll.  ab.  342. 


OKAP.  in.]  CHATTELS  OF  THE  WIFE.  .  145 

In  England  if  the  wife's  fortune  be  in  chancery,  or 
the  aid  of  that  court  be  required  to  put  the  husband 
in  possession  of  it,  he  will  be  compelled  to  make  pro- 
vision for  the  wife;  (a)  but  the  courts  of  Pennsylvania 
have  no  authority  to  insist  on  such  provision  for  her, 
when  he  applies  for  her  personal  estate.  (&) 

The  choses  in  action  of  the  wife,  except  the  arrears 
of  rent  due  to  her,  which  are  given  to  the  husband  by 
Stat.  32,  Hen.  VIII,  C.  37,  go  to  her  representatives. 
(e)  But,  in  the  capacity  of  her  administrator  the  hus- 
band may  recover  such  things  in  action  as  became 
due  to  her,  before  or  during  the  coverture,  (d) 

And  he  will  hold  the  property  of  the  wife  discharg- 
ed from  the  lien  of  her  debts;  if  the  wife  die  before 
payment  and  the  husband  do  not  assume  her  debt,  (e) 

If  the  right  of  the  wife  to  a  chattel,  accrue  during 
the  marriage,  the  husband  will  be  entitled  to  it,  though 
she  die  before  it  be  reduced  to  possession.  (/)  Thus 
if  a  legacy  be  left  to  the  wife  to  be  paid  twelve  months 
after  the  testator's  death,  and  the  wife  die  within  that 
period,  her  husband  is  entitled  to  it,  for  an  immediate 
interest  was  vested  in  him  and  subject  to  his  release, 
before  the  time  of  payment,  (g) 

In  all  cases  where  property  is  given  generally  to 
the  wife,  it  shall  vest  in  the  husband,  (/»)  but,  where  it 
is  given  to  the  separate  use  of  the  wife  she  is  entitled 
to  it,  independently  of  the  husband.  For,  where  any 
thing  is  settled  to  the  wife's  separate  use,  she  is  con- 

(«)  2  Vez.  669.  (/)  Tom.  Dig-.  Baron  &  Fomme,  E. 

i»  Yohe  v.  Barnet,  1  Binn.  365.  3.  t  Mod.  179.  1  Sid.  337. 

(c)  Toll.  Exrs.  224.  (g)  Com.  Dig.  Ib  2  Roll.  Rep.  134. 

(rf)  2  Bl  Com.  43.  ft)  i  Vern.  261.  2  Vern.  659. 
(e)  Beach  v.  Lee.  2  Dall.  257. 


146  CHATTELS  OF  THE  WIFE.  [BOOK  in. 

side  red  as  a  feme  sole,  and  may  appoint  in  what  man- 
ner she  pleases,  and  unless  the  joining  of  trustees  with 
her,  is  made  necessary,  there  is  no  occasion  for  it.  (a) 

And  this  separate  interest  of  the  wife  may  arise  not 
only  from  express  gift,  in  technical  words,  but  from 
words  not  technical,  or  from  circumstances,  (b)  Thus, 
where  an  estate  was  given  to  the  husband  for  the 
livelihood  of  the  wife,  he  was  considered  as  a  trustee 
for  her  separate  use.  (c)  So  where  diamonds  were 
given  to  the  wife  by  the  husband's  father,  on  her 
marriage,  it  was  held  that  they  were  a  gift  to  her  sep- 
arate use.  (d)  And  even  where  a  foreigner  made  the 
wife  a  present  of  trinkets,  not  expressly  for  her  sepa- 
rate use,  the  court  seemed  to  consider  them  as  her 
separate  property,  (e) 

But  where  a  testator  devised  to  his  married  daugh- 
ter B  "  the  uses,  issue  and  profits"  of  his  lands  and 
tenements  at  N.  to  hold  to  her,  during  her  natural 
life,  &c.  and  by  codicil  reciting  the  devise  in  the  will, 
and  on  "  further  consideration''  devised  the  same  to 
C  and  D  "  in  trust  for  the  use,  benefit  and  behoof  of 
his  daughter  B,  for  and  during  her  natural  life,  they 
or  the  survivor  to  rent  out  in  the  best  manner  so  that 
no  waste  is  made  of  the  timber,  and  the  best  care  that 
can  be  to  preserve  the  land  from  abuse  by  extrava- 
gant tillage  she  the  said  B  to  have  all  the  rente,  issues 
and  profits  for  and  during  her  natural  life,"  and  at 
her  decease  to  her  male  heirs.  It  was  held  that 
there  being  no  clear  intent  manifest,  that  the  devise 

(a)  1  Vez  518.  303.  cited  in  Newlia     (c)  3  Atk.  399.  Darly  v.  Darly. 
v.  Newlin,  1  Serg,  &  R.   275.   1     (c/)  Ibid.  393. 

Bunb.  187.  (e)  1  Fonbl.  98.  3  Atk.  393. 

(b]  Toll.  Ex.  226. 


OHAP.  in.]          CHATTELS  OF  THE  WIFE.  147 

was  intended  for  the  separate  use  of  B,  the  husband 
was  entitled  to  the  rents  and  profits,  (a) 

Gifts  from  the  husband  to  the  wife,  if  they  do  not 
prejudice  creditors,  are  good.  Thus  where  the  hus- 
band transferred  one  thousand  pounds  stock  in  the 
name  of  his  wife,  she  was  held  entitled  to  it,  to  her 
separate  use.  (6)  And  so  of  trinkets  given  by  the  hus- 
band to  the  wife,  (c) 

And  where  the  husband  allowed  his  wife  to  make 
profit  of  all  butter,  poultry,  fruit  and  other  trivial  mat- 
ters, arising  from  the  farm,  beyond  what  was  used  in 
the  family,  out  of  which  she  saved  one  hundred 
pounds,  which  the  husband  borrowed,  on  his  death  the 
Court  of  Chancery  allowed  the  agreement  as  rea- 
sonable encouragement  of  the  wife's  frugality,  and  ad- 
mitted her  to  come  in,  as  a  creditor  for  that  sum.  (d) 
But  a  gift  of  the  whole  of  the  husband's  estate  whilst 
he  is  living,  will  not  be  admitted  in  any  case,  for  that 
would  not  be  in  the  nature  of  a  mere  provision,  which 
is  all  she  is  entitled  to.  (e) 

But,  if  the  husband  and  wife  live  together,  and  he 
provide  her  with  clothes,  and  other  necessaries,  and 
she  demand  not,  but  suffer  him  to  receive  the  rents  and 
profits  of  her  separate  estate,  or  if  she  accept  payments 
short  of  what  she  is  entitled  to,  on  his  death,  neither 
she  nor  her  representatives,  shall  have  an  account  of 
such  separate  estate,  further  back  than  a  year;  for  she 
shall  be  presumed  to  have  waived  her  right  to  the 
antecedent  produce.  (/)  Yet  if  the  husband  pay  the 

(a)  Torbet  v.  Twining  and  Al.  1      (d)  3  Pr.  Wms.  339. 

ycates,  432.  (e)  3  Atk.  72. 

(fe)  I  Atk.  271.  3  Atk.  393.  (J\  2  P.  Wms.  G2.  340.  3  Pr.  Wms. 

(c)  3  Atk.  393.  355.  2  Vex.  7.  190. 


148  OF  PARAPHERNALIA.  [BOOK  in. 

wife  part  of  what  may  be  due  to  her  and  promise  to 
pay  the  remainder  she  will  be  entitled  to  all  the  ar- 
rears, (a)  And  she  will  also  be  entitled  to  all  the  ar- 
rears, if  she  lived  separate  from  her  husband.  (6) 

But  if  A  proposing  to  give  a  married  woman 
money  for  her  separate  use,  and  to  secure  it,  give  her  a 
note  for  a  certain  sum,  as  received,  promising  to  be 
accountable,  it  shall  be  assets  in  the  hands  of  the  ex- 
ecutor of  the  husband.  So  likewise  if  a  married  wo- 
man deposit  money  in  A's  hands  to  be  kept  for  her 
separate  use  it  shall  be  considered  as  a  part  of  the 
husband's  estate,  (c) 

SECTION  v. 
Of  Paraphernalia. 

In  England  the  wife  may  also  acquire  a  legal  pro- 
perty in  certain  effects  of  the  husband,  at  his  death, 
which  shall  survive  to  her,  in  addition  to  her  jointure 
or  dower,  and  be  transmissable  to  her  personal  rep- 
resentatives, (d) 

Such  effects  are  styled  her  paraphernalia^  a  term 
importing  her  bed  and  necessary  apparel,  and  such 
ornaments  of  her  person,  as  are  agreeable  to  the  rank 
and  quality  of  the  husband,  (e)  The  extent  of  this 
right  is  uncertain,  but  is  to  be  determined  on  the 
particular  circumstances  of  each  case,  by  the  discre- 
tion of  the  court.  (/) 

We  can  find  no  traces  of  judicial  recognition  of  this 
right  in  Pennsylvania.  Yet,  it  is  by  this  right,  that 

(a)  1  Atk.  269.  Eq.  Ca.  ab.  140.  178. 

(6)  3  Atk.  695.  1  Vez.  298.  (e)  Com.  Dig.  Baroo  and  Femme,  F. 

(c)  Bnnb.  188.  3.  1  Holl  Ab.  911.  Toll.  Ex.220. 

(rf)  1  Bl.  Com.  435.  3  Bac.  ab.  66.  (/)  Cro.  Car.  343. 
Off.  Ex.  Sup.  61.  62.  11  Vin.  ab. 


JHAP.  in.]  OF  PARAPHERNALIA. 

the  wife,  in  all  cases  retains  her  apparel  and  trinkets, 
without  inquiry.  There  is  therefore  no  reason  to  be- 
lieve that  this  branch  of  the  common  law  has  not  been 
extended  to  us.  Cases  may  arise  in  which  the  value 
of  the  jewels  of  the  wife,  might  be  disproportion 
ately  great,  when  the  representatives  of  the  husband 
might  compel  her  to  bring  them  into  account,  in  the 
distribution  of  the  estate. 

In  England,  her  bed  is  the  first  enumerated  article 
of  her  paraphernalia,  and  is  sacred  from  all  but  cre- 
ditors. Here,  we  believe  it  is  always  the  practice  to 
inventory  the  bed  of  the  wife,  with  the  other  personal 
property  of  the  decedent. 

The  husband  if  inclined  to  so  unhandsome  an  exer- 
cise of  his  power  may  sell  or  give  away  in  his  life  time 
the  paraphernalia  of  the  wife;  but  he  cannot  dispose 
of  them  by  will,  (a) 

In  case  of  deficiency  of  assets  for  the  payment 
of  debts,  the  widow  is  not  entitled  to  her  parapher- 
nalia, though  presented  to  her  by  the  husband  before 
marriage.  (6)  Nor  is  she  entitled  where  there  are 
contingent  assets,  unless  such  assets  arise  before  the 
application  of  the  paraphernalia  to  the  payment  of 
debts,  (c) 

But  though  subject  to  the  debts,  the  paraphernalia 
is  preferred  to  the  legacies,  (d)  If  the  husband  pawn 
them,  and  die,  leaving  a  sufficient  fund  to  pay  all  his 
debts  and  to  redeem  the  pledges,  they  shall  be  re- 
deemed for  her.  (e) 

(a)  2  Bl.  Com.  436.  3  Atk.  394.  (c)  2  P.  Wms.  80.  Toll.  Ex.  231. 

(6)2  Bl.  Com.  436.  1  P    Wm.  730.  (d)Toll.  Ex.  Ib. 

2  P.    Wm.  544.    3    Atk.    369.  (e)  3  Atk.  395. 

Moore  2 16.  2  Atk.  104. 


150  OF  DON ATJO  CAUSA  MORTIS.         [BOOK  in. 

If  the  husband  bequeath  to  the  widow  her  jewels 
for  life,  and  then  over,  and  she  make  no  election  to 
have  them  as  her  paraphernalia  her  executor  shall 
have  no  title  to  demand  them,  (a) 

If  a  woman  by  marriage  articles  agree  to  claim  such 
part  only  of  the  effects  of  the  husband,  as  he  shall 
give  her  by  his  will,  she  is  excluded  from  her  para- 
phernalia. (6)  But  her  necessary  apparel  shall  in 
all  cases  be  protected,  as  decency  and  humanity  re- 
quire, even  against  the  claims  of  creditors,  (c) 

/ 

SECTION  VI. 

Of  donatio  causa  mortis. 

There  is  a  species  of  interest  in  the  personal  pro- 
perty of  a  decedent,  arising  from  a  gift  on  the  approach 
of  death,  called  donatio  causa  mortis. 

It  has  place,  where  one  in  his  last  illness,  apprehen- 
sive of  the  approach  of  death,  delivers,  or  causes  to 
be  delivered  to,  or  for,  a  party  the  possession  of  any 
of  his  personal  effects,  to  keep  in  the  event  of  his  de- 
cease; and  it  is  accompanied  with  the  implied  trust, 
that  if  the  donor  live,  the  property  shall  revert  to  him; 
since  it  is  given  only  in  contemplation  of  death,  (d) 

To  substantiate  the  gift,  there  must  be  an  actual 
tradition  or  delivery  of  the  thing.  It  must  be  given 
into  the  hands  of  the  donee,  either  by  the  donor  him- 
self, or  by  his  order,  (e)  or'  to  a  third  person  for  the 
use  of  the  donee;  and  a  delivery  to  the  wife  of  the  do; 
nor  for  the  use  of  the  donee  is  valid.  (/)  But  where 

(a)  Clawges  v.  Albermale,  2  Vern.  (d)    Toll.  Ex.  223.  3    Binn.    370. 

246.  Wells  v.  Tucker. 

(6)  3  Bac.  ab.  66.  Com.  Dig.  Baron  («)  2  Vez.  431.  2  Vez.  111.  1  P. 

&  Femme,  F.  3.  2  Vern.  49, 83.  Wms.  404,  441.  3  Binn.  370. 

(c)  2  Bl.  Com.  436.  2  Roll.  ab.  91 1 .  (/)  Wells  v.  Tucker,  3  Binn.  370. 


QHAP.  in.]        OF  DONATIO  CAUSA  MORTIS.  151 

the  subject  will  not  admit  of  a  corporeal  delivery,  the 
nearest  approach  to  it,  will  be  admitted.  Thus  a  ship 
will  pass  by  the  delivery  of  a  bill  of  sale  defeasible  on 
the  donor's  recovery  or  by  other  deed  or  writing-,  (a) 
goods  in  a  warehouse  or  trunk,  by  delivery  of  the 
key.  (6)  The  delivery  of  the  key  and  bill  is  not  held 
symbolical,  but  as  the  means  of  obtaining  possession 
of  the  property.  The  gift  of  a  bond  or  bank  notes, 
though  choses  in  action  may  be  a  good  donatio  causa 
mortis,  for  a  property  is  conveyed  by  the  delivery,  (c) 

Bills  of  exchange,  promissory  notes,  and  checks  on 
bankers,  are  said  not  to  be  subjects  of  this  kind  of  gift. 
These  instruments  are  distinguished  from  a  bond  in 
this,  that  the  bond  is  itself  the  foundation  of  the  de- 
mand-, the  destruction  of  which  destroys  the  demand; 
whereas  bills  and  notes  are  only  evidences  of  the  con- 
tract, (d) 

This  distinction  seems  more  nice  than  solid.  The 
bond  is  but  an  evidence  of  a  contract,  essential  to  be 
sure  on  trial,  if  it  have  not  been  lost  or  destroyed;  the 
former  existence  of  which  may  be  proved  by  parole. 
A  bill  of  exchange  or  promissory  note  is  in  the  hand 
of  the  endorsee  more  conclusive  of  the  amount  due,  and 
affords  more  ready  means  of  recovering  the  debt. 

Simple  contract  debts,  and  arrears  of  rent  are  in- 
capable of  this  species  of  disposition,  because  there 
can  be  no  delivery  of  them,  (e) 

Whether  the   delivery  of  a  mortgage  deed  will 

(a)3Vez.  Jr.  120.  Lawson,  1  P.  Wms.  44  f .  Tatev 

(&)  2  Vez.  234.  Hilbert,  2  Vez.  Jun.  11 1,  contra, 

(c)  3  Atk.  214.  2  Vez.  441.  3  Binn.  (e)  Ward  v.  Tamer,  2  Vez.  436. 

366.  Wells  v.  Tucker.  442. 
(rf)  2  Vez.  442.  sed.  vide,  Lawson  v. 


152  OF  DONATIO  CAUSA  MORTIS.          [BOOK  in. 

amount  to  such  a  gift  of  the  money  due  on  the  secu- 
rity, seems  to  be  an  undecided  point,  (a) 

A  delivery  merely  symbolical  will  not  operate  as 
such  a  gift.  As  where  on  a  deed  of  gift,  not  to  take 
place  till  after  the  grantor's  death,  a  sixpence  was  de- 
livered by  way  of  putting  the  grantee  in  possession; 
the  court  held  such  delivery  insufficient,  and  pro- 
nounced for  the  instrument  as  a  will.  (6)  Nor  is  the 
delivery  of  the  receipt  for  stock  sufficient-,  a  transfer 
of  the  stock  is  necessary  to  make  the  donation  valid. 
(c)  Least  of  all,  shall  such  donation  be  effectuated 
by  parole,  as  merely  saying  "  I  give,"  without  any  act 
to  transfer  the  property. (d)  Nor  where  a  man  consider- 
ing himself  dying  took  certain  property  out  of  an  iron 
chest  and  wrote  the  names  of  two  persons  on  the  en- 
velop containing  it,  and  declared  it  to  be  his  inten- 
tion, that  they  should  have  such  property  at  his  death, 
and  then  returned  it  to  the  chest,  and  kept  the  keys 
in  his  own  possession,  never  having  made  an  actual 
delivery  thereof  to  the  parties  or  trustees  for  them. 

w 

If  the  donor  die,  the  interest  of  the  donee  is  com- 
pletely vested-,  nor  is  it  necessary  the  gift  should  be 
proved  as  part  of  the  will,  it  operating  on  the  execu- 
tor as  a  declaration  of  trust,  and  his  assent  to  it  is  not 
requisite  as  in  the  case  of  a  legacy.  (/) 

But  the  gift,  however  regularly  made,  shall  not  pre- 
vail against  creditors,  (g) 

(a)  3  P.  Wm.  358.  2  Vez.  436.  Has-         Vez.  120. 

sel  v.  Tynte,  AmbL318.  11  Vin.  (e)  Burn  v.  Markham,!  Holt's  Rep. 

ab.  178.    1   P.    Wms.  441.  3  P.  352.  7  Taunt.  Uep.  224. 

Wms.  357   Miller  v.  Miller.  (/)  2  Bl.  Com.  514.  2  Vez.  Jr.  120. 

(b)  2  Vez.  440.  Toll.  Ex.  236. 

(c)  2  Vez.  431.  (g)  Ib.  Ib.  Ib. 
(rf)  2  Vez.  444.  Tate  v.  Hilbert,  2 


CHAP,  in.]  OF  EXECUTOR'S  INTEREST.  153 

SECTION   VII. 

How  the  effects  which  the  executor  takes  may  become  his 

own. 

The  property  of  the  testator  received  by  the  exec- 
utor may  in  certain  cases  become  his  own. 

As  if  the  executor  mix  the  money  of  his  testator, 
with  his  own,  so  that  it  cannot  be  distinguished;  though 
he  be  accountable  for  its  value,  yet  the  money  can- 
not be  levied  on  by  fi.  fa.  on  judgment  against  the 
testator,  (a)  So  if  the  testator  die  indebted  to  the  ex- 
ecutor, or  the  executor  pay  a  debt  of  the  testator  in 
its  proper  order  with  his  own  money  he  may  elect  to 
take  any  specific  chattels  of  the  value  of  the  money 
paid,  as  a  compensation.  (6) 

But  if  the  debt  due  and  payable  to  him  from  the 
testator  amount  to  the  full  value  of  all  his  effects  in  the 
executor's  hands,  there  is  a  complete  transmutation  of 
the  property  in  favor  of  the  executor,  by  the  mere 
act  and  operation  of  law;  in  the  former  case  his  elec- 
tion, and  in  the  latter  the  mere  operation  of  law,  shall 
be  equivalent  to  a  judgment  and  execution,  for  he  is 
incapable  of  suing  himself,  (c) 

But  under  the  act  of  1794,  an  executor  or  adminis- 
trator is  not  entitled  to  retain  the  whole  amount  of  his 
debt  against  creditors  of  equal  degree.  He  can  re- 
tain only  pro  rata,  where  there  is  a  deficiency  of  as- 
sets, (d) 

(a]  Off.  Ex.  f>9.  Toll.  Ex.  238.  (c)  Plowd.  185.  Toll.  Ex.  238. 

(b)  Ib.  Ib.  Id]  ExpnrteMcason,  5  Finn.  167. 

U 


154  OF  EXECUTOR'S  INTEREST.          [BOOK  in. 

SECTION  VIII. 

Of  the  interest  of  an  administrator  general  and  special — 
Of  a  married  woman  executrix  or  administratrix — 
Of  the  several  executors  or  administrators — Of  the 
executor  of  an  executor. 

The  interest  of  an  administrator  in  the  property 
of  the  deceased  is  the  same  as  that  of  the  executor, 
but  the  power  and  authority  of  special  or  limited  ad- 
ministrators are  not  like  his.  (a) 

If  a  married  woman  be  an  executrix  or  administra- 
trix, the  husband  has  a  joint  interest  with  her  in 
the  effects  of  the  deceased;  such  as  devolves  the 
whole  administration  upon  him,  and  enables  him  to  act 
in  it,  to  all  purposes  with  or  without  her  assent.  (&) 

But  the  wife  has  no  right  to  administer  without  the 
husband,  and  her  gift  or  release  of  the  decedent's  pro- 
perty, without  his  concurrence  will  be  of  no  validity, 
(e)  In  case  of  the  husband's  death  the  interest  never 
having  been  devested  will  survive  to  her;  but  if  she 
die,  leaving  the  husband,  it  shall  not  belong  to  him, 
because  it  belonged  to  him  merely  in  her  right,  as 
representative  of  the  deceased,  (d)  A  wjfe  executrix 
may,  without  the  consent  of  her  husband,  make  a  will 
and  continue  the  executorship  in  respect  to  the  pro- 
perty thus  vested  in  her  in  auter  droit.  (e)  If  she  have 
debts  due  to  her  in  her  own  right,  and  goods  and 
credits  as  executrix,  and  she  may  make  a  will  with- 
out her  husband's  assent,  appointing  an  executor,  the 

(a]  Toll.  Ex.241.  Off.  of  Ex.  259.  801. 

ib.  Suppl.  48.    Buckborough    v.  (c)  Salk.    306.  Off.   Ex.  207.   208. 

Davis,  1  P.  Wrns.  43.  Hudson  v.  Toll.  Ex.  242. 

Hudson,  1  Atk.  460.  (d)  Off.  Ex.  208.  Toll.  Ex.  242. 

(6)  Yard  v.  Ld.  Raym.  369.  Com.  (e)  Off.  Ex.   199.  Toll.  Ex.  ib-  Ja- 

Dig.  Admin.  D.  1  Salk.  306.  Off.  comb  v.  Harwood,  2  Vez.  267. 

Ex.  199.  4T.  R.  616.    Bl.  Rep. 


CHAP,  iv.]  OF  THE  FUNERAL.  155 

will  in  respect  to  the  effects  which  she  held  as  exec- 
utrix is  valid,  and  her  executor  may  prove  it  in  oppo- 
sition to  the  husband.  But  as  to  the  debts  due  to  her 
in  her  private  capacity,  the  will  is  void,  and  the  hus- 
band may  take  administration,  (a) 

If  there  be  several  executors  or  administrators,  they 
are  regarded  in  the  light  of  an  individual  person. 
They  have  a  joint  and  entire  interest  in  the  testator's 
effects,  which  is  incapable  of  being  divided  (b)  and  in 
case  of  death  such  interest  shall  vest  in  the  survivor,  (c) 

So  also  an  executor  of  an  executor,  in  however  re- 
mote a  series,  has  the  same  interest  in  the  goods  of 
the  first  testator,  as  the  first  and  immediate  executor. 


An  administrator  de  bonis  non  has  also  the  same 
interest  in  such  effects  as  remain  unadministered, 
as  was  vested  in  the  executor  or  antecedent  adminis- 
trator. (e) 

CHAPTER  IV. 

OF  THE  DUTIES  OF  AN  EXECUTOR  OR  ADMINISTRATOR  — 
FUNERAL  —  INVENTORY  -  COLLECTING  THE  EFFECTS  - 
OF  THE  PAYMENT  OF  DEBTS  —  OF  LEGACIES  —  OF  THE 
DISTRIBUTION  OF  THE  PERSONAL  ESTATE. 

SECTION    1. 

Of  the  Funeral. 

The  first  duty  of  an  executor  is  to  bury  the  de- 
ceased according  to  his  rank  and  circumstances.  (/) 

(a)  Off.  Ex.  202.  (d)  Com.  Dig.  Ad.  G.  Ofr.  Ex.  259. 

(b)  Com.  Dig.   Adm.   B.  12.   Toll.     («)  Toll  Ex.  243. 

Ex.  243.  (/  )  OiFey  v.  Offey,  Free,  in  Chan. 

fr)9Co.  36.  Dy.  160.  2  P.  Wms.         27.  Com.  Dig.  "Admin.  C. 

'     121. 


156  OF  THE  INVENTORY.  [BOOK  in. 

He  may  do  this  before  probate:  and  if  a  stranger 
perform  it,  he  does  not  thereby  become  an  executor  de 
son  tort,  (a)  But  the  executor  or  administrator  who 
pays  the  expenses,  will  not  be  allowed  any  charges 
which  are  extravagant:  (b)  nor  as  against  creditors, 
more  than  is  absolutely  necessary,  (c)  Charges  for 
feasts  and  entertainments  are  improper,  (d.) 

A  breach  of  these  rules  will  make  the  executor,  or 
administrator  liable  to  creditors  and  legatees,  (e) 

SECTION    II. 

Of  the  Inventory. 

It  is  the  duty  of  the  executor  and  administrator  to 
make  an  inventory  of  the  personal  estate  of  the  de- 
ceased, in  the  presence  of  at  least  two  of  his  creditors 
or  legatees,  or  next  of  kin;  and  in  their  default  or 
absence,  in  the  presence  of  two  other  honest  persons-, 
and  to  cause  the  same  to  be  indented,  and  one  part  to 
deliver  to  the  register  on  oath  and  the  other  to  re- 
tain in  his  own  possession,  (f  ) 

By  the  act  of  the  19th  April,  1794,  the  administra- 
tor is  to  give  bond,  as  we  have  already  shown,  one  of 
the  conditions  of  which  is,  that  he  will  file  his  irivento 
ry  within  one  month:  and  the  executor  is  bound  by 
his  oath,  made  at  the  issuing  of  the  letters  testamen- 
tary, to,  return  an  inventory  within  one  month. 

The  inventory  should  contain  a  full,  true,  and  per- 
fect description  and  estimate  of  all  the  chattels,  real 
and  personal,  in  possession,  and  in  action  which  be- 

(a)  Toll.  Ex.  245.  (e)  2  Bl.  Cora  .508.  Godolph.  p.  2.  c. 

(6)  bl.  Com.  508.  26.  s.  2. 

(t)  Toll.    Ex.    245.  (/)  21  Hen.  VIII.  c.  5.  Report  of 

(d)  Off  Ex.   131.  Toll.  Ex.  246.  Judges.  Roberts.  Dig.  250. 


CHAP,  iv.]  OF  THE  INVENTORY.  157 

long  to  the  deceased:  and   should   distinguish  such 
debts  as  are  sperate  from  such  as  are  desperate,  (a) 

There  is  much  carelessness  with  regard  to  the  in- 
ventory; it  is  often  informally  made,  frequently  never 
filed,  and  sometimes  never  taken.  It  is  however  the 
part  of  a  prudent  person  who  sustains  the  office  of 
executor  or  administrator  in  every  case,  to  have  the 
effects  carefully  appraised  and  inventoried,  not  only 
because  he  may  be  required  to  produce  the  inventory, 
but  because  a  distinct  and  accurate  knowledge  of  the 
fund  is  necessary  to  direct  him,  in  the  safe  execution 
of  the  trust.  Indeed  if  a  party  administer  without 
making  an  inventory,  the  law  will  suppose  him  to 
have  assets  for  the  payment  of  all  the  debts  and  lega- 
cies, unless  he  repel  the  presumption.  Whereas  if 
he  make  an  inventory,  he  shall  not  be  presumed  to 
have  more  of  the  effects  of  the  deceased,  than  are 
comprised  within  it,  arid  the  proof  of  any  omission  is 
then  thrown  on  the  opposite  party.  (6) 

In  practice  the  letter  of  the  statute  is  not  strictly 
pursued,  with  regard  to  the  appraisement  and  inven- 
tory, (c)  The  appraisement  is  made  by  any  two 
persons  of  repute,  and  the  inventory  obtains  credence 
unless  falsified  by  the  opposite  party.  And  where 
there  is  no  occasion  to  file  an  inventory  it  may  be 
dispensed  with  altogether.  As  if  there  be  no  debts, 
or  if  they  have  been  all  paid,  and  there  be  but  one 
child  of  the  decedent,  or  if  there  be  several  children 
and  they  are  all  satisfied  with  the  distribution  of  the 
effects,  (d) 

(a)  2  Bl.  Com.  510.  3  Bac.  ab.  47.  (c)  4  Burn.  EC.   L.  252.  Toll.  Ex. 

Toll.  Ex.  248.  251. 

(6)  Toll.  Ex.  250.  4  Burn.  EC.  L.  (d)  !b.  4  Burn.  Tit.  Inventory,  s.  If) 

265,  266. 


158  OF  THE  INVENTORY.  [BOOK  m. 

On  the  other  hand,  the  register  may  in  special  ca- 
ses, at  the  instance  of  the  party  interested,  decree  an 
inventory  to  be  exhibited  by  the  executor  or  admin- 
istrator, before  the  issuing  of  the  probate,  or  letters 
of  administration  under  seal;  and  such  inventory  must 
also  be  substantiated  by  special  oath.  («)  Also  under 
particular  circumstances  before  grant  of  probate  or 
letters  x)f  administration,  the  register  will  on  the  peti- 
tion of  a  party  interested,  instead  of  requiring  an  in- 
ventory, issue  a  commission  for  the  appraisement  and 
valuation  of  the  goods,  rights  and  credits^  and  inspec- 
tion of  the  bonds,  leases  and  other  writings  relative 
to  the  personal  estate  of  the  deceased,  at  his  house  or 
elsewhere  on  a  day  specified,  with  such  continuation 
of  time  and  place  as  may  be  necessary.  (6) 

In  cases  of  this  nature  there  also  issues  a  monition  to 
the  other  party  in  special,  and  to  all  others  in  general, 
with  whom  any  such  effects  of  the  deceased  remain, 
requiring  them  to  exhibit  the  same  to  the  appraisers, 
under  such  commission,  at  the  time  and  place  requi- 
red for  its  execution,  in  order  that  they  may  be  ap- 
praised, and  inserted  in  the  inventory,  (c\ 

And  on  such  commission  being  duly  executed,  the 
inventory  shall  be  brought  in  and  exhibited,  signed 
by  the  appraisers,  or  two  of  them  at  the  least,  but 
without  the  oath  of  the  party,  (d) 

In  such  case  also,  an  inventory  is  often  required  on 
the  oath  of  the  executor  or  administrator,  of  such 
goods  of  the  deceased,  as  have  been  already  disposed 

(a)  4  Burn.  EC.  L.  266.  344.   Toll.  Ex.   252. 

(6)  Ib.  1  Ought.  345.  (d)  Ib.  Jb.  Toll.  Ex.  253. 

(c)  4  Burn.   EC.  L.  266.  1  Ought. 


CHAP,  iv.]        OF  COLLECTING  THE  EFFECTS.  159 

of.  (a)  But  after  an  inventory  is  exhibited  a  credi- 
tor cannot  impeach  it,  in  the  register's  office;  for  the 
stat.  21.  Henry  VIII.  which  requires  an  executor  or 
administrator  to  make  an  inventory,  enjoins  him  only 
to  deliver  it,  on  oath,  into  the  keeping  of  the  ordina- 
ry; and  the  ordinary  is  bound  to  receive  it.  (6)  But  the 
creditor  may  state  objections  to  the  inventory  which 
the  party  is  bound  to  answer  on  oath;  but  no  evidence 
is  admissable  to  contradict  the  answer. 

The  executor  or  administrator  is  not  conclusively 
bound  by  the  first  inventory;  if  it  be  erroneous  he 
may  file  a  second  correcting  the  error,  (c)  And  he  is 
at  liberty  to  show  that  the  assets  in  hands  amount  to 
less,  than  he  may  have  originally  stated  them. 

SECTION  III. 

Of  collecting  the  effects. 

The  next  duty  of  the  executor  or  administrator  is 
to  collect  all  the  goods  and  chattels  so  inventoried. 
For  that  purpose,  the  law  invests  him  with  large  pow- 
ers and  authority. 

Within  a  convenient  time  after  the  testator's  death, 
or  the  grant  of  administration,  he  may  enter  the  house 
descended  to  the  heir,  in  order  to  remove  the  goods, 
but  he  must  commit  no  violence,  (d)  The  door  must 
be  open  and  the  key  must  be  in  it,  and  this,  whether 
the  door  of  the  hall  or  chamber  or  parlour,  He  has 
a  right  to  take  deeds  and  other  writings  relating  to 
personal  estate  out  of  a  chest  in  the  house,  if  the  chest 

(a)  4  Burn.  EC.  L.    266.    1  Ought,  (r)  Cas.  of  Bradford's  Ex.  1  Browne 

344.  Toll.  Ex.  253.  87.  4  Burn.  EC.  L.   252.  2  Vcz. 

(6)  4  Burns  EC.  L.  267.  Burr.  1922.  193. 

8  Mod.  168.2  Fonb.  418.  (eO  Harg.  Co.  Litt.  56.  b. 


160  OF  COLLECTING  THE  EFFECTS.      [BOOK  in. 

be  unlocked  or  the  key  be  in  it,  but  he  has  no  right 
to  break  open  even  the  chest.  If  he  cannot  take  pos- 
session of  the  effects  without  force,  he  must  desist  and 
resort  to  his  action,  (a)  On  the  other  hand  if  the  ex- 
ecutor or  administrator  on  his  part  be  remiss  in  re- 
moving the  goods  within  a  reasonable  time  the  heir 
may  distrain  them  as  damage  feasant.  (6) 

The  executor  or  administrator  has  also  a  right,  on 
producing  his  letters  at  the  bank,  and  causing  so  much 
of  them  as  relates  to  the  testator's  interests  in  the  se- 
veral stocks  to  be  entered  with  the  proper  offices,  to 
have  the  stocks  transferred  to  him  or  to  his  appointee: 
and  this  though  the  stock  may  have  been  specifically 
bequeathed,  and  on  refusal  the  bank  is  subject  to  an 
action  at  his  suit,  (c) 

He  may  sell  or  otherwise  dispose  of  the  effects  of 
the  deceased,  to  raise  money  for  the  purposes  of  the 
trust,  (d)  He  has  power  to  sell  or  mortgage  terms 
for  years,  and  effects  specifically  bequeathed,  and  may 
apply  them  even  to  satisfy  his  private  debt,  (c)  He 
may  sue  out  or  assign  a  mortgage  in  fee.  (/) 

If  he  alien  the  assets  a  creditor  cannot  follow  them, 
unless  the  alienation  were  voluntary  and  by  collusion 
with  the  purchaser;  for  a  purchaser  can  have  no  means 
of  knowing  the  debts  of  the  decedent,  (g) 

The  executor  or  administrator  may  recover  by  ac- 
tion whatever  pertains  to  the  ^personal  estate,  (h)  and 

(a)  Off.  Ex.  92,  93.  11  Vin.  ab.  267.  1  Atk.  463.  Toll.  Ex-  2.'>G. 

Toll.  Ex.  255.  (6)2  P.  Wms.  158.  2  Br.  Ch.  Rep. 

(6)  Off.  Ex.   93.  Plowd.  280,  281.  438. 

Vid.  Cro.  Jac.  204.  Hang.   Co.  (/)   Simpson  v.    Ammon,  1  Bion. 

Litt.  566.  175. 

(c)  Toll.  Ex.  256.  (g)  I  Atk.  463.  3  Atk.  237.  Toll.Ex. 

(d)  2  Bl.  Com.  510.  Humble  v.  Bill,  257. 

2  Vern.  455.  Nugent  v.  Gifford,     (h)  Toll.  Ex.  158. 


CHAP,  iv.j         OF  THE  PAYMENT  OF  DEBTS. 

redeem  such  chattels  as  the  deceased  may  have  left 
in  pledge. 

The  legislature  has  been  careful  to  give  every  fa- 
cility to  the  executor  and  administrator  in  discharge 
of  their  trust,  and  has  preserved  to  them  the  right  of 
selling  the  effects  of  their  decedents  free  from  auction 
duties,  (a) 

SECTION  IV. 

Of  the  payment  of  Debts. 

The  executor  or  administrator  having  collected  the 
assets,  his  next  duty  is  to  pay  the  debts  of  the  deceas- 
ed. 

By  the  act  of  assembly  of  nineteenth  April,  1794^ 
Sec.  14,(6)  a  certain  order  is  prescribed  in  which  these 
debts  are  to  be  paid.  And  by  act  of  congress,  third 
March,  1797,  Sec.  5,  it  is  provided  that  "  when  the 
estate  of  any  deceased  debtor  in  the  hands  of  execu- 
tors or  administrators  shall  be  insufficient  to  pay  all  the 
debts  due  from  the  deceased,  the  debt  due  to  the 
United  States  shall  be  paid  first."  And  this  law  operates 
on  cases  in  which  the  debt  had  been  contracted  before 
its  passage,  (c)  And  on  argument  it  was  resolved  that 
the  act  of  Congress  was  constitutional,  and  that  the 
United  States  were  entitled  to  a  preference  and  might 
avail  themselves  of  it,  by  suit  on  the  administration 
bond,  although  the  act  of  Assembly  of  1794,  which 
gives  the  suit,  and  fixes  the  order  of  payment  of 
the  debts,  does  not  recognize  the  preference,  (d) 

(a)  Act  U  Feb.  1730.  1  Sm.  L.  179.     (c)  Commth.  v.  Lewis.  6  Binn.  266. 

Act23  Sept.  1789.  1  Sm.  L.  510.       ((/)  Ib. 
(6)3Sm.  L.  148, 


OF  THE  PAYMENT  OF  DEBTS.          [BOOK  ni. 

And  if  the  executor  pay  debts  of  an  inferior  order, 
in  preference  to  those  of  a  superior,  he  will  be  per- 
sonally liable  on  a  deficiency  of  assets,  (a) 

The  order  of  payment  is  as  follows.  1.  Physic,  fu- 
neral" expenses  and  servant's  wages.  2.  Rents  not  ex- 
ceeding one  year.  3.  Judgments.  4.  Recognizances. 
5.  Bonds  and  specialties.  6.  All  other  debts  without  re- 
gard to  their  quality  (simple  contract  debts,)  except, 
7.  Debts  due  to  the  commonwealth,  which  are  to  be 
last  paid.  Of  these  in  their  order.  And 

1st.  Of  physic,  funeral  expenses  and  servants'  wages. 
It  is  a  disputed  point  whether  "  physic"  includes  every 
bill  for  medical  services,  or  only,  that  which  was  made 
during  the  last  sickness  of  the  decedent.  The  doubt 
it  is  presumed  has  arisen  from  reference  to  the  laws 
of  some  of  the  neighbouring  states,  (6)  in  which  pre_ 
ference  has  been  given  to  the  expenses  of  the  last  ill- 
ness only.  It  certainly  cannot  arise  out  of  the  words 
or  policy  of  the  law.  The  words  are  sufficiently  com- 
prehensive to  embrace  the  physic  administered  dur- 
ing a  whole  life;  and  the  true  policy  of  the  law,  is, 
that,  by  providing  for  the  remuneration  of  medical 
agents  and  menial  services,  the  poor  might  obtain 
proper  aid,  in  the  hour  of  need,  (c)  In  Bond's  case, 
determined  in  Philadelphia,  the  majority  of  the  court, 
was  of  opinion  that,  medicine  furnished  to  the  whole  of 
the  decedents  family  was  included  in  this  preference. 
(d)  With  the  same  humane  design  the  servants  who  are 
preferred  for  their  wages,  are  the  domestics  that  make 

(a)  2  Com.  511.  Toll.  Ex.  258.  Boniface  v.  Scott,  3  Sergt  &  R. 

(6)  Connecticut,  New   Hampshire,         352.  Bond's  case,  Mss.  Orpb.  Ct- 
Massachusetts,  Vermont,   New         Philada.  Hallowell  dissentient. 

Jersey.  (d)  Mss.  Rep. 
(c)Exparte  Meason,  5  Binn.  179, 


CHAP.  iv.J          OF  THE  PAYMENT  OF  DEBTS.  163 

part  of  the  family  and  are  employed  to  assist  in  the 
economy  of  the  house  and  its  appurtenances.  Con- 
sequently workmen  and  labourers  have  not  this  pre- 
ference, (a)  But  a  bar-keeper  is  a  servant  within  the 
meaning  of  the  act.  (6) 

It  would  seem  to  have  been  the  intention  of  the  le- 
gislature to  give  to  the  several  species  of  each  class 
of  debts,  the  same  preference;  and  therefore  if  there 
should  not  be  assets  to  pay  in  full  all  the  claims  for 
funeral  expenses,  physic  and  servant's  wages  they 
should  be  paid  pro  rata,  and  not  in  the  order  in  which 
they  are  named;  as  physic,  to  the  exclusion  of  the 
funeral  expenses  and  servants'  wages. 

2.  Rents  not  exceeding  one  year  are  next  in  order. 

If  there  be  more  than  one  year's  rent  due,  the  sur- 
plus would  be  payable  as  specialties,  where  the  lease 
is  under  seal;  and  as  simple  contract  debts,  where  it 
is  b}^  parole,  (c)* 

But  a  distinction  is  to  be  taken  between  rent  in  ar- 
rear,  at  the  death  of  the  decedent,  and  such  as  accrued 
subsequently  to  his  death.  The  first  is  to  be  paid  by 
the  executor  in  that  character,  and  he  can  be  sued  for 
it  in  the  detinet  only,  and  may  plead  that  he  has  fully 
administered,  (d)  For  the  subsequent  rent  he  is  per- 
sonally liable  so  far,  as  the  profits  received  from  the 
term,  (e)  which  must  be  appropriated  to  the  payment 

(a)  Exparte,  Meason,  3  Binn.  179.         Burr.  1384.1  Salk.  326.  Toll.  Ex. 
Boniface  v.  Scott,  3  Sergt.  &  R.          273. 

352.  Bond's  case,  Mss.  Orphan's  *  But  qucre  whether  rent  on  parole 

Court,  Philada.  ITalJowell  dissen-  lease  is  not  of  equal  grade  with 

tient.  rent  on  lease  under  seal.     Vide 

(b)  Boniface  v.  Scott,  3  Sergt.  &  II.  authorities  cited  above. 

352.  (rf)  I  Wilson  4.  Com.  Dig.  Admin. 

(c)  Off.  Ex.  146.  2  Bl.  Com.  46.1,          B.  14.  Toll.  Ex.279. 
511.  Com.  Dig.  Admin.  C.  2.  3      (e)  1  Salk.  317. 


164  °*  THE  PAYMENT  OF  DEBTS.          [BOOK  in. 

of  the  rent  and  cannot  be  applied  to  any  othef  pur- 
pose, (a)  If  the  profits  be  insufficient  to  pay  the  rent,  the 
executor  is  chargeable  for  such  proportion  of  the  rent, 
as  shall  exceed  the  profits  merely  in  his  capacity  of 
executor;  and  to  an  action  brought  by  the  lessor 
against  him  in  the  debet  and  detinet,  he  must  disclose 
the  matter  by  special  pleading,  and  pray  judgment 
whether  he  shall  be  charged  otherwise  than  in  the 
detinet  only.  (6) 

Thus  the  profits  of  the  land  are  to  be  applied  by 
the  executor,  in  the  first  place  to  the  discharge  of  the 
rent,  and  if  that  fund  should  prove  insufficient,  the  re- 
sidue of  the  rent  is  payable  out  of  the  general  assets 
and  stands  on  the  same  footing  with  other  debts  by 
specialty,  (c) 

3.  Judgments.  In  treating  of  judgments,  it  is  to  be 
remarked,  that  the  order  of  paying  the  debts  of  a  de- 
cedent is  according  to  their  nature  at  the  time  of  his 
decease;  and  that  a  simple  contract  creditor  obtains  no 
preference  by  a  judgment  against  his  executor  or  ad- 
ministrator, (d)  And  though  executors  and  adminis- 
trators may  by  their  bona  fide  acts  conclusively  de- 
fine the  extent  of  the  claims  of  different  creditors,  they 
cannot  vary  the  vested  interest  of  creditors,  nor  change 
the  order  established  by  statute  for  the  payment  of 
debts,  (e) 

Between  conflicting  judgment  creditors  it  has  been 
the  uniform  practice  to  consider  the  lands  bound  by 
the  judgments  from  their  respective  dates  only.  And 

(a)  1  Salk.317.  483.  Scott  v.  Ramsey,    1  Binn. 

(6)  1  Salk.  317.  Toll.  Ex.  26(0.  221.Prevost  v.  NichoJls,  4  Yeates 

(e)  Toll.  Ex.281.  479, 

(d)  Toll.  Ex.  265, 266,  267.  1  \Voot-  (e)  Ib. 
eringv.  Stewart,  &  al.  2  Yeates, 


CHAP,  iv.]          OF  THE  PAYMENT  OF  DEBTS.  165 

a  judgment  on  a  subsequent  debt  shall  have  prefer- 
ence over  a  judgment  on  a  prior  debt,  if  the  former 
be  obtained  before  the  latter,  (a)  But  between  judg- 
ments entered  on  the  same  day  there  is  no  priority; 
they  are  to  be  paid  pro  rata.  (b) 

Where  there  is  no  real  estate,  and  the  personal 
estate  is  insufficient  to  pay  the  judgments,  they  are  to 
be  paid  pro  rata  and  not  in  the  order  of  their  date,  (c) 
But  where  assets  are  derived  from  the  sale  of  real 
estate  the  judgments  must  be  paid  according  to  their 
priority  even  when  such  estate  is  sold  under  an  or- 
der of  the  Orphan's  Court,  (d) 

Judgments  before  justices  of  the  peace,  when  filed 
in  the  prothonotary's  office,  or  when  made  known  to 
the  executor  or  administrator  before  he  has  paid 
away  the  estate,  are  on  a  footing  with  judgments  in 
a  court  of  record,  (e)  And  it  would  seem  that  the  ad- 
ministrator would  not  be  guilty  of  devasatavit  if  he  paid 
the  estate  to  creditors  of  an  inferior  nature,  before 
he  received  notice  of  judgments  rendered  by  justices 
of  the  peace,  and  not  filed.  (  /  ) 

A  recognizance  in  the  Orphan's  Court,  conditioned 
for  the  payment  of  the  distributive  share  of  a  child,  is 
in  the  nature  of  a  judgment  and  must  be  paid  as  such. 


A  judgment  in  a  foreign  country  or  in  a  sister  state 
is  regarded  merely  as  a  debt  by  simple  contract,  (h) 

(a)  Welsh  v.  Murray,  4  Dall.  320.  4  (d)  4  Dall.  450. 

Yeates,  197.  (e)  Scott  v.  Ramsey,  1  Binn.  221. 

(6)   Ld.    Forchester's    case   cited,  [/)  Ibid. 

Pugh  v.  Robinson,  1  T.  R.   118.  (g-)    Beatty  &  Wife   v.    Smilh,    4 

Steele  v.  Taggert,  1  Browne  R.  Yeales,  102. 

20,  note.  .Emerick  v.  Garwood,  (h)  Off.  Ex.  138.  2  Fbnbl.  460.  2 

Ib.  20.  S.  C.  cited  1  Dall.  321,  Vern.  540.  Wright  v.  Tower,  1 

in  note.  Browne  R.  App.  1. 

(c)  Scott  v.  Ramsey,  1  Binn.  221. 


166  OF  THE  PAYMENT  OF  DEBTS.         [BOOK  in. 

The  first  section  of  the  4th  Art.  of  the  constitution 
of  the  United  States,  provides  that  full  faith  and  cre- 
dit shall  be  given  in  each  state  to  the  public  acts,  re- 
cords, and  judicial  proceedings  of  every  other  state: 
and  that  Congress  may  by  general  laws  prescribe  the 
manner  in  which  such  acts,  records,  and  proceedings 
may  be  proved,  and  the  effect  thereof:  and  Congress 
have  enacted  that  such  "  records  and  judicial  proceed- 
ings shall  have  such  faith  and  credit  given  to  them 
within  the  United  States,  as  they  have  by  law  and 
usage  in  the  courts  of  the  state  from  whence  they  may 
have  been  taken."  Under  this  article  and  act  of  Con- 
gress it  might  possibly  be  doubted,  whether  a  judg- 
ment entitled  to  priority  of  payment  in  the  state  in 
which  it  was  rendered  might  not  be  entitled  to  like 
priority  in  this  state. 

But  the  inconveniences  of  such  construction,  are 
so  great,  that  nothing  but  the  express  and  unequivo- 
cal directions  of  the  legislature  can  justify  it.  The 
greatest  effect  given  to  judgments  rendered  in  a  sis- 
ter state,  is  to  make  them  conclusive  evidence  in 
some  cases  of  the  debt  due  from  a  defendant,  (a)  To 
entitle  them  to  priority  of  payment  from  the  assets  of 
a  decedent,  might  compel  the  executor  or  adminis- 
trator to  search  the  records  of  almost  every  court  in 
the  union, — a  task  almost  impossible,  and  attended 
with  great  delay  and  enormous  expense. 

The  president  of  the  Orphan's  Court  of  Philadel- 
phia county,  (Hallowell)  however,  has  intimated  an 
opinion  "  that  all  judgment  creditors  who  render  their 
accounts  to  an  executor  or  administrator  within  the 

(«)  Green  v.  Sarmiento,  1  Browne's  Rep.  App.  30.  Wright  v.  Tower.  Ib.  1 . 


CHAP,  iv.]          OF  THE  PAYMENT  OF  DEBTS.  167 

time  prescribed  by  the  act  of  nineteenth  April,  1794, 
that  is,  one  year  after  public  notice  in  the  newspapers 
as  therein  directed,  are  entitled  to  the  preference 
assigned  them  whether  their  judgments  be  obtained 
in  any  county  of  the  state,  or  in  any  other  state:  that 
an  executor  or  administrator  when  administering  the 
personal  assets  merely,  is  not  bound  to  search  for 
judgments  any  where  but  in  the  county  in  which  his 
decedent  resided  at  the  time  of  his  death."  (a)  But 
suppose  a  writ  of  error  be  brought  by  plaintiff,  and 
the  Supreme  Court  reverse  the  judgment,  and  enter 
such  judgment  as  the  court  below  should  have  given, 
(fe)  will  not  the  administrator  be  required  to  search 
the  records  of  the  Supreme  Court,  of  the  district  in 
which  his  decedent  resided,  though  the  action  was 
originally  brought  in  a  county  different  from  that  in 
which  he  dwelt?  And  though  by  the  act  of  twentieth 
March,  1799,  (c)  such  judgment  is  a  lien  on  lands  only 
in  the  county  in  which  it  is  rendered,  yet  will  it  not 
be  considered  as  constructive  notice  to  the  executor, 
being  filed  in  the  prothonotary's  office?  (d)  Indeed 
until  it  be  otherwise  decided  by  the  Supreme  Court, 
the  question  whether  the  executor  or  administrator  is 
not  bound  to  search  for  judgments  in  every  county  in 
the  state,  may  be  considered  as  open.  Undoubtedly 
when  it  shall  be  examined,  the  arguments  drawn 
from  inconvenience  and  general  practice  will  weigh 
heavily  in  the  negative. 

A  judgment  quod  computet  in  the  action  of  account 
is  not  entitled  to  priority,  (e) 

(a)  Bond's  case.  Mss.  Rep.  (d)  Scott  v.  Ramsay,  1  Binn.  221. 

(6)  Swearinger  v.Pendletoo,  4  Serg.  (e)  11  Vin.  ab.  297.n.  2  Freem.  103, 

&  R.  396.  Toll.  Ex.  267. 
V)  3  8m.  L.  358. 


]«>s  OF  THE  PAYMENT  OK  DEBTS.  LBOOKin- 

4.  The  preference  given  to  recognizances  was  ne- 
cessarily productive  of  an  inquiry  into  the  time  at 
which  their  lien  should  attach.  A  recognizance  is  an 
obligation  of  record,  which  a  man  enters  into  before 
some  court  of  record,  or  magistrate  duly  authorized 
with  condition  to  do  some  particular  act,  as  to  appear 
at  court,  to  keep  the  peace,  to  pay  a  debt,  or  the  like. 
(n)  From  this  definition  it  is  evident,  that  if  the  re- 
aizance  bound  from  its  caption,  or  taking,  that, 
monies  must  be  paid,  or  at  least  locked  up  in  the  hands 
of  the  executor  or  administrator,  which  may  never  be 
payable  to  the  recognizee;  because  no  payment  is  to 
be  made  unless  the  condition  be  forfeited. 

The  effect  of  the  recognizance  was  determined  in 
1783,  in  the  Common  Pleas  of  Philadelphia  county  in 
the  case  of  Campbell  v.  Richardson.  (6)  This  case 
arose  under  the  act  of  1705,  in  which  a  preference 
is  also  given  to  debts  due  by  recognizance,  after  judg- 
ments. 

The  defendant  had  been  bail  for  his  brother,  who 
suffering  judgment  to  go  against  him,  a  scire  facias 
was  issued  against  the  defendant,  and  in  due  course 
judgment  thereon.  In  the  interim  between  the  re- 
cognizance of  bail  and  judgment  on  the  scire  facias, 
several  judgments  were  obtained  against  the  defen- 
dant by  his  proper  creditors,  execution  issued,  and 
his  real  estate  was  seized  and  <old.  But  the  proceeds 
not  being  sufficient  to  satisfy  ;ill  the  judgments,  the 
sheriff  brought  the  money  into  court,  to  be  disposed  of 
as  it  should  direct. 

For  the  plaintiff  it  was  contended,  that  recognizance 

(a)  2  Black.  Com.  341.  Toll.  Ex.  271,  2.  Common-  (6)  1  Dall.  131. 

wealth  vs.  Emery,  3  Binn.  413. 


«HAP.  iv.j          OF  THE  PAYMENT  OY  DEBTS. 

of  bail  was  a  lien  on  land  from  the  date  of  the  recog- 
nizance, and  therefore  claimed  a  preference  to  all 
judgments  afterwards  obtained;  although  they  might 
be  }-revious  to  the  judgments  on  the  scire  facias. 

The  defendant  insisted  that  Campbell  should  only 
have  preference  from  the  date  of  the  judgment  on  the 
scire  facias,  and  argued  from  the  statute  of  frauds,  and 
the  act  of  assembly  ascertaining  the  mode  of  paying 
the  debts  of  decedents. 

The  court  said,  that  although  lands  in  England  are 
bound  by  recognizance,  yet  there  is  some  uncertainty 
as  to  the  time  from  which  they  are  bound:  whether 
from  the  caption,  or  from  the  inrollment  of  the  recog- 
nizance-, or  from  the  judgment  against  the  principal-, 
or  from  a  non  est  inventus  returned  upon  the  capias  ad 
satisfaciendum;  that  though  no  legal  decision  had  been 
had  on  this  point  in  Pennsylvania,  a  general  opinion 
prevailed  which  had  been  carried  into  universal  prac- 
tice, that  recognizances  do  not  here  bind  lands  until 
they  are  proceeded  upon  by  judgment  against  the 
bail.  Hence  it  is,  that  whenever  a  purchase  or 
mortgage  is  made,  the  examination  at  the  offices,  and 
the  certificates  which  are  given  bv  the  prothonotaries 
are  only  of  the  judgments  in  force  against  the  seller 
or  mortgagor,  and  not  concerning  recognizances.  The 
practice  has  indeed  been  so  general,  that  all  the  con- 
veyancers and  lawyers,  for  a  long  course  of  years, 
have,  on  such  occasions  confined  their  inquiries  to  that 
circumstance  alone-,  and  many  titles  must  therefore 
depend  upon  it,  which  would  be  shaken  if  a  contrary 
construction  should  now  be  adopted. 

We  may  also  take  into  view,  that,  long  before  the 

Y 


170  OF  THE  PAYMENT  OF  DEBTS.          [BOO*  wi. 

pass!  ig  the  act,  for  the  prevention  of  frauds,  the  rela- 
tive dignity  of  judgment  debts,  and  of  those  upon  re- 
cognizance, had  been  settled  by  law  directing  the  or- 
der of  paying  the  debts  of  persons  deceased.  That  is, 
1.  Physic  and  funeral  expenses.  2.  Debts  and  duties 
to  the  queen.  3.  Debts  due  to  the  proprietor  and 
governor.  4.  Judgments.  5.  Debts  due  by  recogni- 
zances. 6.  Rents,  &c.     If  however,  it  should  be  said, 
that  this  is  only  a  direction  in  what  order  debts  should 
be  paid,  without  any  respect  to  the  binding  nature  of 
recognizances,  it  may  be  answered,  that,  from  the 
situation  of  lands  in  this  country,  that  consideration 
must  necessarily  be  included.     Here  lands  are  chat- 
tels for  the  payment  of  debts;  they  are  chattels  too  in 
the  hands  of  executors;  and  all  writs  ofji.fa.  direct  the 
levy  accordingly  to  be  made,  of  the  goods  and  chat- 
tels in  the  hands  of  the  executor.  If  then  in  such  case 
two  writs  are  executed  upon  lands,  founded  one  upon 
a  prior  recognizance,  and  the  other  on  a  judgment  sub- 
sequent to  the  recognizance,  but  prior  to  the  judg- 
ment upon  it,  the  court  must  clearly  decree  a  prefer- 
ence to  the  judgment  creditor.  This  seems  indeed  to 
be  a  legislative  direction  as  to  recognizances  in  simi- 
lar cases;  for  what  confusion  would  arise,  from  sup- 
posing the  lands  of  deceased  persons,  to  be  bound  from 
one  time,  and  the  lands  of  living  persons  from  another. 
In  the  case  of  Patterson  v.  Sample,  in  the  Supreme 
Court,  decided  in  1806,  and  of  course  under  the  act 
of  1794,  the  doctrine  laid  down  in  Campbell  v.  Rich- 
haidson  was  fully  confirmed:  (a)  But  from  these  rules 
recognizances  in  the  Orphan's  Court  to  secure  the 

(a)  4  Yeates,  SOS. 


CHAP,  iv.]         OF  THE  PAYMEN'f  OF  DEBTS.  171 

distributive  shares  of  the  real  estate  of  an  intestate 
are  exempted.  Such  recognizances  bind  the  lands 
(a)  from  their  date  (6)  by  legal  lien  (c)  and  are  in  the 
nature  of  a  judgment,  and  cannot  be  reduced  by  claims 
rising  anterior  to  their  caption,  (d)  And  the  recog- 
nizor  is  bound  to  pay  interest  for  the  distributive 
shares  of  the  other  representatives  from  the  time  of 
his  acceptance,  (e) 

It  remains  to  inquire  whether  recognizances  on 
which  judgments  have  not  been  rendered  have  pre- 
ference over  specialities  and  simple  contract  debts. 

This  point  was  raised  in  the  case  of  Dorsey  v.  Tu- 
nis et  al.  administrator  of  Dunwoody  who  was  special 
bail  of  Lauman.  (/)  Dunwoody  in  his  life  time  en- 
tered into  a  recognizance  of  special  bail  in  the  case 
of  Dorsey  v.  Lawman,  judgment  was  obtained,  a  ca.  sa. 
returned  non  est  inventus,  and  scire  facias  issued 
against  Dunwoody,  the  special  bail,  returnable  to 
September  term,  1802,  which  was  returned  serv- 
ed. After  Dunwoody  was  fixed  for  the  debt,  by  the 
return  of  the  scire  facias,  he  died  on  or  about  the 
fifteenth  of  December,  1802.  After  argument,  the 
Court  decided  that  a  recognizance  of  bail  under  such 
circumstances  is  within  the  act  of  1794,  and  under  its 
true  construction  has  a  preference  over  bond  and 
simple  contract  debts. 

From  these  cases  the  following  positions  are  to  be 
induced. 

(a)  Walton  v.  Willis,  1  Dall.  2§5.  .  (d)  Beatty  v.  Smith,  4  Yeates,  102. 

(6)  Kean  v.  Franklin,  5  Sergt.  &  R.  (e)  Hubly  v.  Hamilton,  1  Yeates, 

147.  39i>. 

(c)Ib.  (/)4  Yeates,  93. 


172  OF  THE  PAYMENT  OF  DEBTS.         [BOOK  IK. 

1 .  Recognizances  have  no  priority  over  subsequent 
judgments;  but  are  postponed  in  relation  thereto. 

2.  That  they  do  not  bind  lands  until  judgment  be 
rendered  upon  them,  or  in  other  words  that  recogni- 
zances considered  as  recognizances  merely,  are  not 
liens  upon  lands,  unless  such  as  are  taken  in  the  Or- 
phan's Court,  to  secure  the  payment  of  the  distribu- 
tive share  of  an  intestate's  real  estate. 

3.  That  recognizances,  as  recognizances,  are  not 
entitled  to  preference  in  any  case  unless  they  be  for- 
feited by  breach  of  the  condition  for  which  they  were 
taken,  and  e  converse  that  when  the  recognizance  is 
forfeited,  it  must  take  precedence  in  payment  accord- 
ing to  the  act  of  Assembly. 

Under  the  last  rule,  recognizances  of  bail  in  civil 
and  criminal  cases,  claim  the  attention  of  executors 
and  administrators.  For  if  in  the  former  the  bail  be 
fixed,  and  in  the  latter  the  recognizance  be  forfeited, 
and  unremitted,  it  must  be  paid  antecedently  to  bonds, 
specialties  and  simple  contract  debts. 

It  may  however  be  questioned  whether  the  act  de- 
signating the  order  for  the  payment  of  the  debts,  em- 
braces recognizances  in  criminal  cases.  If  it  does, 
there  ought  to  be  actual  notice  to  the  executor  of  the 
existence  of  the  recognizance,  and  of  its  forfeiture, 
for  in  the  office  of  the  clerk  of  the  sessions  and  of  the 
court  of  oyer  and  terminer,  there  is  no  index,  nor  any 
other  ready  means  by  which  a  knowledge  of  the  for- 
feiture can  be  obtained,  though  it  be  an  act  of  record. 
And  this  is  also  the  case,  with  regard  to  recognizan- 
ces entered  into  on  appeal,  conditioned  not  for  the 


.  iv.]         OF  THE  PAYMENT  OF  DEBTS.  173 

payment  of  money  ascertained  by  judgment  or  decree 
in  the  court  below,  but  for  the  prosecution  of  the 
suit  or  payment  of  costs. 

If  recognizances  in  criminal  cases  be  within  the 
act  of  1791,  a  distinction  may  be  made  between  those 
which  inure  to  the  commonwealth,  and  those  which 
are  for  the  use  of  individuals  or  corporations,  as 
in  the  case  of  the  overseers  of  the  poor  of  the  city 
and  county  of  Philadelphia,  who  are  entitled  to  the 
proceeds  of  forfeited  recognizances  in  cases  of  forni- 
cation and  bastardy  and  tippling  houses.  The  claims 
of  the  commonwealth  will  never  interfere  with  those 
of  the  citizen,  whether  on  recognizance  or  otherwise, 
because,  as  we  have  seen,  they  are  to  be  last  paid. 
But  where  the  recognizance  is  in  the  name  of  the 
commonwealth,  but  in  reality  for  the  use  of  a  corpora- 
tion, the  rights  of  such  corporation  are  to  be  consid- 
ered and  not  those  of  the  state.  And  it  would  seem, 
therefore,  that  such  recognizances  are  to  be  paid  by 
the  executor  or  administrator,  before  bonds  and  spe- 
cialties, if  he  have  notice  that  they  are  forfeited. 

4.  To  these  recognizances  we  may  add  such  as  are 
taken  in  the  courts  of  the  United  States.  The  debts  of 
the  United  States  are  to  be  first  paid.  Forfeited  recog- 
nizances, are  clearly  debts,  recoverable  by  suit,  and 
consequently  the  non  payment  of  them  in  their  order 
by  an  executor  would  subject  him  to  the  penalties  of 
a  devastavit,  at  the  suit  of  the  United  States. 

5.  The  next  class  in  order,  is  that  of  bonds  and  speci- 
alties. A  specialty  is  an  instrument  under  seal,  and  a 
claim  against  the  estate  of  a  person  deceased  for  dam- 


174  OF  THE  PAYMENT  OF  DEBTS.        [BOOK  in. 

ages  on  account  of  a  breach  of  articles  of  agreement 
under  seal,  is  a  debt  by  specialty  within  the  act.  (a) 

A  debt  by  specialty  must  be  paid  before  a  debt  by 
simple  contract,  although  the  bond  be  not  at  maturity, 
for  the  obligation  is  a  present  duty,  and  the  condition 
is  but  a  defeazance  of  it.  (b)  And  where  there  are 
two  bonds,  one  due  and  the  other  not,  they  are  to  be 
paid  pro  rata.  (c) 

But  a  contingent  security,  as  a  bond  to  save  harm- 
less, shall  not  be  preferred  to  a  debt  by  simple  con- 
tract, (d)  But  where  the  contingency  has  taken  place, 
although  the  debt,  consequent  upon  it,  has  not  been 
paid,  the  bond  shall  be  preferred,  (e) 

A  mere  voluntary  bond  shall  not  be  preferred  to  a 
simple  contract  debt,  which  is  bona  fide  owing;  but 
such  bond  if  not  to  the  prejudice  of  the  creditors  must 
be  paid  by  the  executor,  and  always  in  preference  to 
legacies.  (/)  And  payment  of  such  voluntary  bond 
may  be  sustained  against  the  claim  of  dower  of  the 
wife,  (g)  But  the  executor  has  no  right  to  pay  a 
bond  founded  on  a  base  and  illegal  cause.  Such  pay- 
ment will  amount  to  a  devastavit  as  well  against  lega- 
tees as  creditors,  (h) 

If  there  be  joint  and  several  obligations,  an  execu- 
tor of  a  deceased  obligor,  may  pay  the  debt  as  a  speci- 
alty. But  if  the  obligation  be  joint  only,  the  survivor 

(a)  Frazier  v.  Tunis,  1  Binn.  254.  (c)  Cox  v.  Joseph.  5  T.  R.  307. 

Toll.  Ex.  278.  (/)  Toller  Ex.  283.  and  cases  there 

(6)  1  Vin.    ab.   304.  Leon.  187.  3  cited. 

Bac.  ab.    81.  Cro.  Eliz.  315.  3  (g)  Killinger    v.    Redinhauser,    6 

Lev.    57.   Cro.    Car.    362.  Ca.  Sergt.  and  R.  531 

Temp.  Hard,  228.  Toll.  Ex.  281.  (h)  1 1   Vin    ab.  307.  Brownl.  33. 

(c)  Off.  Ex.  143.  Toll.  Ex.  281.  Hob.  157,  1  Vez.  254.  Toll.  Ex. 

(d)  Laney  v.  Fairman.  2  Vin.  151.  283. 
Hawkins  v.  Day,  Ambl.  160. 


CHAP,  iv.]      OF  THE  PAYMENT  OF  DEBTS.  J75 

must  be  charged  out  of  his  own  estate,  and  the  exec- 
utors of  the  deceased  obligor  are  not  liable  on  the  in- 
strument, (a) 

A  mortgage  is  a  debt  by  specialty  and  is  to  be  paid 
out  of  the  personal  estate,  though  there  be  neither 
bond  nor  covenant  for  the  payment  of  the  money,  (b) 

If  there  be  not  sufficient  assets  to  discharge  the 
bonds  and  specialties,  the  act  of  1794,  s.  14,  declares 
they  shall  be  averaged,  and  paid  pro  rata. 

6.  Simple  contract  debts  are  those  which  arise  on 
bills  and  notes  not  under  seal,  and  agreements,  and 
such  as  are  implied  by  law.  These  are  to  be  paidjpro 
rata  by  the  last  recited  act  of  assembly. 

For  determining  the  pro  rata  amount  of  bonds,  spe- 
cialties and  other  debts  of  an  inferior  degree,  the 
above  recited  act  directs  the  executor  or  administra- 
tor to  apply  to  the  Orphan's  Court,  which  is  authori- 
zed to  appoint  three  or  more  auditors  to  settle  and 
adjust  the  rates  and  proportions  of  the  remaining  assets 
due  and  payable  to  such  respective  creditors,  whose 
report  thereon,  if  approved  by  the  court,  shall  be 
confirmed,  and  the  executor  or  administrator  must 
pay  such  creditors  accordingly,  (c) 

And  to  enable  the  executor  to  make  an  early  set- 
tlement of  his  accounts,  by  the  same  act  (d)  it  is  fur- 
ther provided,  that  no  creditor,  who  shall  neglect  to 
exhibit  his  account  to  the  executors  or  administrators, 
within  twelve  months  after  public  notice  given  in  one 
or  more  of  the  public  news-papers  of  the  state  for  four 

(a)  11  Vin.  ab.  288.  1   Mod.   165.         Wms.  358.  Toll.  Ex.  285. 

Frem.  127.  (r)  3  Sm.  L.   149. 

(&)  2  Vern.  554.  Powel  on   Mort.  (d)  Ibid. 

813.  1  Pr.  Wms.  291,  294.  3  P. 


176  OF  THE  PAYMENT  OF  DEBTS.        [BOOK  in. 

weeks,  shall  be   entitled  to  demand  or  receive  any 
dividend  of  such  remaining  assets. 

To  give  sufficient  time  to  administrators  to  settle 
the  estate  and  exhibit  their  accounts,  it  is  enacted  (a) 
that  no  administrator  shall  be  compelled  to  make  dis- 
tribution of  the  goods  of  the  intestate,  until  one  year  be 
fully  expired  after  the  intestate's  death.  And  that  a  due 
regard  may  be  had  to  creditors,  each  person  to  whom 
a  distributive  share  shall  be  allotted,  may  be  required 
to  give  bond  with  sufficient  securities  in  the  Orphan's 
Court,  conditioned,  that  if  any  debt  owing  by  the  intes- 
tate, shall  be  afterwards  sued  and  recovered,  he  will 
refund  to  the  administrator  his  rateable  proportion  of 
such  debt,  thereby  to  enable  such  administrator  to  pay 
and  satisfy  the  debts  so  discovered  after  distribution 
made.  Such  bonds  are  absolutely  required,  when 
the  distribution  is  made  by  the  court;  but  when  dis- 
tribution is  made  by  the  administrator  it  is  optional 
with  him  to  require  them,  or  not. 

The  act  of  Assembly  of  1705,  having  classed  debts 
in  the  order  in  which  executors  shall  be  bound  to 
pay  them,  adds  that,  nevertheless  executors  or  ad- 
ministrators shall  not  be  prevented  from  or  damnified 
for  discharging  the  decedent's  just  debts,  as  the  same 
shall  come  to  their  knowledge,  without  regard  to  the 
priority  of  the  same  in  payment,  after  the  expiration 
of  twelve  months  from  the  time  of  the  decedent's 
death.  Under  this  clause  it  was  contended  that  the 
executor  or  administrator  could  not  be  sued  until  af- 
ter the  expiration  of  twelve  months.  But  the  court 
declared  that  it  would  be  attended  with  the  most  in- 

(a)  Act.  1794.  s.  15.  3  Sm.  L.  149. 


«HAP.  iv.]      OF  THE  PAYMENT  OF  DEBTS.  177 

convenient  and  pernicious  consequences,  to  determine 
that  a  creditor  could  not  compel  payment  from  his 
debtor's  estate,  nor  even  bring  suit  against  the  execu- 
tor for  a  period  of  twelve  months.  That  the  order  of 
paying  debts,  obviously  respects  voluntary  and  not 
compulsory  payments,  (a)  This  decision  was  had  be- 
fore the  passage  of  the  act  of  1794,  and  as  no  provision 
was  made  by  that  act  to  protect  the  executor  or  ad- 
ministrator from  suit  by  the  creditor,  it  may  be  con- 
sidered as  having  received  the  sanction  of  the  legis- 
lature, and  may  be  taken  as  the  settled  law  of  the 
land. 

With  regard  to  interest  on  debts,  it  is  to  be  observ- 
ed, that  interest  generally  speaking  is  a  legal  incident 
of  every  judgment-,  (b)  and  the  practice  since  the  act 
of  1700,  has  always  been  to  ascertain  the  real  debt  at 
the  time  of  the  judgment  entered,  and  to  calculate  in- 
terest thereon,  as  on  a  new  principal,  and  this  as  well 
upon  writs  of  scire  facias  brought  to  revive  judgments, 
as  in  actions  of  debt  founded  on  them,  (c)  The  words 
of  the  act  of  1700  are,  "  that  lawful  interest  shall  be, 
allowed  to  the  creditor  for  the  sum  or  value  he  ob- 
tained judgment  for,  from  the  time  the  said  judgment 
was  obtained  till  the  time  of  sale,  or  till  satisfaction 
he  made.'7  And  where  a  judgment  has  been  revived 
by  repeated  writs  of  scire  facias,  the  plaintiff  has  a 
right  to  charge  interest  on  the  aggregate  amount  of 
principal  and  interest,  due  at  the  time  of  rendering 
judgment  on  each  scire  facias,  (d) 

a)  Roberts  v.  Cay's  Ex.  2  Dall.  160     (c)  Berryhill  v.  Wells.  5  Binn.  61. 
(b)  Fitzgerald  v.  Caldwell's  Exs.  4     (d)  Fries  v.  Watson,  5  Sergt.  aaJ  R 
Dall.  252.  220. 


178  OF  THE  PAYMENT  OF  DEBTS.         [BOOK  in. 

In  other  cases,  interest  is  payable  wherever  one 
man  has  received  the  money  of  another  and  has 
retained  it  without  the  consent  of  the  owner,  as  for 
money  had  and  received:  (a)  on  rent  it  is  payable  from 
the  time  the  rent  falls  due,  unless  from  the  con- 
duct of  the  landlord  it  may  be  inferred  that  he  meant 
not  to  insist  upon  it-,  or  unless  he  acts  in  an  oppres- 
sive manner  by  demanding  more  than  is  due,  where 
the  tenant  is  willing  to  do  justice,  or  where  there  are 
other  equitable  circumstances  making  the  charge  of 
interest  improper:  (b)  on  an  open  account,  interest 
is  chargeable  j  1.  Where  it  is  payable  by  the  express 
agreement  of  the  parties;  2.  By  general  usage-,  3. 
Where  there  has  been  a  vexatious  and  unreasonable 
delay,  (c)  4.  Where  the  express  or  implied  time  of 
credit  has  elapsed  and  a  demand  of  payment  has  been 
made,  (d) 

Interest  is  recoverable  in  assumpsit  for  money  had 
and  received,  for  work  and  labour  done,  and  in  an 
action  on  a  policy  of  insurance;  (e).  on  a  parole  award 
from  the  time  of  the  award-,  (/)  from  the  party  in  pos- 
session of  land  under  a  contract  for  the  unpaid  pur- 
chase money;  (g)  on  promissory  notes  where  a  day 
certain  is  fixed  for  the  payment,  from  the  day  of  pay- 
ment, and  where  no  day  is  fixed  from  the  time  of  the 
demand,  (h) 

As  the  executor  or  administrator  cannot  sue  him- 

(a)  Rapelje  &  al.  vs.  Emory,  1  Dall.         193. 

349.     Dilworth   v.  Sinderling,  1  (c?)  Crawford  &  al.  v.  4  Dall.  289. 

Binn.  488.  (e)  Obermeyer  v.  Nichols,   6  Binn. 

(6)  Oberrneyer  v. Nichols,  6  Binn.          163. 

159.  (/)  Jones  v.  Ringold,  1  Yeates, 
(c)  Williams  v.  Craig-,  I  Dall.  315,  480- 

316.  Henry  v.  Risk,  1  Dall.  265.  (#)  Shaller  v.  Brand.  6  Binn.  435. 

Christie  v.  Wood,  &  al.  2  Yeates,         Jacobs  v.  Adams,  1  Dall.  52. 

213.  Knox  &  al.  v.  Jones,  2  Dall.  (ft)  Jacobs  v.  Adams,  1  Dall.  52. 


«HAP.  iv.]         OF  THE  PAYMENT  OF  DEBTS.  179 

self,  he  is  permitted  to  retain  his  debt  out  of  the 
assets  which  came  to  his  hands:  but  he  cannot  re- 
tain his  own  debt  against  those  of  a  higher  degree, 
for  the  law  places  him  in  the  same  situation  as  if 
he  had  sued  himself,  (a)  Nor  can  he  retain  his 
whole  debt  against  those  of  equal  degree,  unless  in 
case  of  a  judgment  having  priority  by  lien  on  land, 
where  there  is  a  deficiency  of  assets,  (b) 

There  is  a  distinction  between  an  executor  and  ad- 
ministrator, debtor  to  the  estate  of  the  decedent. 

As  a  general  rule  the  appointment  of  a  debtor 
executor  is  a  release  and  extinguishment  of  the  debt; 
on  the  principle  that  a  debt  is  merely  a  right  to  re- 
cover the  amount  by  way  of  action-,  and  as  an  execu- 
tor cannot  maintain  an  action  against  himself,  his  ap- 
pointment by  the  creditor  to  that  office,  discharges 
the  action  and  consequently  discharges  the  legal  rem- 
edy for  the  debt,  (c)  But  if  a  debtor  take  out  admin- 
istration he  is  not  released  from  the  debt,  (d)  because 
his  appointment  is  not  the  act  of  the  creditor.  The 
extinguishment  in  the  case  of  the  executor  is  not 
wrought  by  way  of  release ,but  by  way  of  legacy  or  gift 
of  the  debt  by  the  will,  (c)  Thus,  if  the  obligor  of  a 
bond  administer  to  the  obligee,  and  die,  a  creditor 
of  the  obligee  having  obtained  administration  de  bonis 
non  may  maintain  an  action  for  such  debt  against  the 
executor  of  the  obligor.(/)  So  if  the  executrix  of 
an  obligee  marry  the  obligor,  such  marriage  is  nore- 

(o)  2  Bl.  Com.  511.  3  Bl.  Com.   18,  (rf)  Wankford  v.  Wankford,  1  Salk. 

19.  5  Binn.  167.  302.  Abraham  v.  Cuningham,  1 

(ft)  Exparte  Meason,  5  Binn.  176.  Ventr.  303. 

(c)  8  Co.  136.  Harg.   Co.  Litt.  264.  (e)  1  Salk.  302. 

b.  note  1.  Toll.  Ex.  349.  Wank-  (/)  Lockierv.  Smith,  Sid.  79. 

ford  v.  Wankford,  1  Salk  299. 


180  OF  THE  PAYMENT  OF  DEBTS.         [BOOK  in. 

lease  of  the  debt-,  for  the  testator  has  done  no  act  to 
discharge  it-,  and  the  husband  may  pay  to  the  wife 
in  the  character  of  executrix,  tf  he  do  not,  the  reme- 
dy is  suspended  merely  by  the  legal  effects  of  the 
coverture,  and  on  her  death  the  administrator  de  bo- 
nis  non  of  the  testator  will  be  equally  entitled  to  that 
debt  as  to  any  others  outstanding,  (a)  It  seems  also, 
that,  the  appointment  of  a  debtor  executor  durante 
minoritate  is  no  discharge  of  the  debt,  since  he  is  only 
executor  in  trust  for  the  infant  until  he  comes  of  age. 

w 

But  this  right  of  the  executor  when  the  debtor  of 
his  testator  is  subject  to  the  following  exceptions.  1 . 
Where  the  testator  has  not  left  a  fund  sufficient  for 
the  payment  of  his  own  debts,  (c)  2.  And  though 
generally  such  executor  shall  be  preferred  to  lega- 
tees, (d)  yet  such  debt  shall  not  be  released  if  the 
presumption  in  favor  of  the  executor  be  rebutted  by 
the  express  terms  of  the  will,  or  by  strong  inferences 
from  its  contents  (e)  As  where  a  testator  directed 
a  legacy  to  be  paid  out  of  a  debt  due  to  him  from  the 
executor.  3.  Where  such  presumption  is  implied!} 
rebutted  by  the  gift  of  a  legacy  to  the  executor.  As 
where  a  testator  bequeathed  large  legacies,  and  also 
the  residue  of  his  estate  to  his  executors;  one  of  whom 
was  indebted  to  him,  in  a  bond  <ff  three  thousand 
pounds,  it  was  determined,  that  this  debt  should  be 

(a)  Crosman's  case,  1    Leo.  320.  13  Vez.  264.  Toll.  Ex.  349.  Off. 

Crossman  v.  Read,   Moore,  236.  of  Ex.  31. 

Wankford  v.    Wankford,  1  Salk.  (d)  2  Bl.  Com.  512.  Harg.  Co.  Litt. 

306.  264.  B.  note  1. 

{!>}  \  \  Vin.  ab.  400.  Ld.  Raym.  605.  (e)  Toll.  Ex.  350,  351.  Bac.  ab.tit. 

(c)  1  Salk.  302,  306.  Bl.  Com.  512.  Ex.  Flud.  Rumcey.  v.  Yelr.  160. 


CHAP,  iv.]     OF  THE  PAYMENT  OF  LEGACIES.  181 

added  to  the  surplus  and  be  divided  between  both 
executors,  (a)  y 

In  all  these  cases  the  debt  due  to  the  testator  is  as- 
sets, and  in  the  first  case  put  above,  the  executor  is 
trustee  for  the  creditors,  and  in  the  others  for  the  le- 
gatees or  next  of  kin. 

SECTION  v. 
Of  the  payment  of  legacies. 

Having  paid  the  debts,  the  next  duty  of  the  exec- 
utor is  to  discharge  the  legacies  given  by  the  testator. 

A  legacy  is  the  gift  or  bequest,  of  personal  proper- 
ty by  will.  (6) 

All  persons  are  capable  of  being  legatees.  And 
though  a  man  cannot  grant  to  his  wife,  he  may  be- 
queath any  thing  to  her  by  will;  since  that  cannot 
take  effect  till  the  coverture  be  determined  by  death, 
(c)  A  child  in  his  mother's  womb  may  also  be  a  lega- 
tee, (d) 

If  a  legatee  be  sufficiently  described  in  a  will,  so 
that  he  can  be  identified,  a  mistake  of  his  christain 
name  will  not  make  the  legacy  void:  as  where  a 
legacy  was  given  "  to  my  namesake  Thomas^  the 
second  son  of  my  brother  John-"  John  had  no  son 
of  the  name  of  Thomas,  but  his  second  son's  name  was 
William;  and  he  was  held  entitled,  (e)  And  if  a  doubt 
arise  with  regard  to  the  person  to  whom  the  bequest 
is  made,  parol  evidence  may  be  received  to  deter- 
mine it;  as  that  a  legacy  given  to  Sam.  P.  was  intend- 

(a)  Brown  v.    Selwyn,   Cas.  Tep.  112. 

Talb  240. 4  Bro.  P.  C.  180.  Bac.  (</)  Bro.  Ch.  R.  320.   Swift  r.  Dnf- 

al».  lit.  Ex.  Toll.  ex.  350-1.  field,  5  Serg.  &  R.  58. 

(6)  Toll.  Ex.  299.  (c)  Cooper's  Rep.  229.  1  Meri.  Rep. 

(c)   1  Bl.  Com.  442.  Harg.  Co.  Litt.  229,  1  Meri.  Rep.  3«4. 


182  OF  THE  PAYMENT  OF  LEGACIES.      [BOOK  m. 

ed  for  W.  P.  though  there  were  persons  of  both 
names,  (a)  So  under  a  bequest  of  an  unmarried  man 
"  to  my  children"  parol  evidence  was  allowed  to 
show  whom  the  testator  considered  in  that  character: 
and  his  illegitimate  children  having  obtained  a  name 
by  reputation,  were  admitted  to  take  though  not 
named  in  the  will.  (6) 

Under  a  devise  "  to  the  children  and  grand-chil- 
dren of  the  testator's  brother  A,  excepting  B  (who  was 
a  grand-child  of  A)  and  her  children,"  great  grand- 
children take  equally  with  children  and  grand-chil- 
dren, (c)  But  in  this  case  there  were  circumstances 
which  indicated  the  intention  of  the  testator  to  include 
great  grand-children. 

Where  a  testator,  after  giving  particular  legacies 
to  certain  nephews  and  nieces,  and  to  certain  of  their 
children  by  their  names  and  inter  alias  to  the  widow 
of  one  of  the  nephews  also  by  name,  bequeathed  all  the 
residue  of  his  estate  among  his  "  nephews  and  nieces  of 
every  description  mentioned  in  the  willf  it  was  held,  that 
the  bequest  was  confined  to  nephews  and  nieces,  and 
did  not  extend  to  their  children,  nor  to  the  widow  of 
the  deceased  nephew,  (d) 

Where  a  devise  was  made  to  "to  the  Roman  cath- 
olic priest  that  shall  succeed  me:  and  that  the  said 
priest  shall  duly  say  four  masses,"  &c.  It  was  ruled 
that  such  priest  must  be  regularly  admitted  by  the 
bishop  to  the  discharge  of  his  duties,  and  must  have 
the  pastoral  care  of  the  congregation,  (e) 

(a)  Powell  v.  Diddle,  2  Dall  70.  (d\  Lewis  v.  Fisher,  £  al.  2  Yeates, 

(6)  1  Madd.  Rep.  430.  2  Meri.  419.  'l96. 

fc)  Pemberton  v.  Parke,  5  Binn.  (e)  Brower's  Ex.  v.  Fromm.  Addis. 

601.  362. 


CHAP,  iv.]    OF  THE  PAYMENT  OF  LEGACIES.          183 

Legacies  are  either  general  or  specific.  General 
are  such  as  are  pecuniary  or  merely  of  quantity,  (a) 
whether  of  money  or  other  chattels.  As  of  a  quantity 
of  stock  5  and  where  the  testator  has  not  such  stock  at 
his  death,  such  bequest  amounts  to  a  direction  to  the 
executor  to  procure  so  much  stock  for  the  legatee. 
(6)  But  where  the  kind  of  stock  is  specially  described 
it  will  be  held  a  specific  legacy.  As  where  a  testator 
being  indebted  on  mortgage  and  possessed  of  five 
thousand  pounds  stock,  by  his  will  gave  to  A  and  B, 
all  the  stock  he  had  in  the  three  per  cents,  being  about 
five  thousand  pounds,  except  five  hundred  pounds 
which  he  gave  to  C;  and  he  devised  other  specific 
parts  of  his  property  to  be  sold,  and  the  produce  to 
be  applied  in  discharge  of  the  mortgage ;  and  after- 
wards the  testator  sold  out  two  thousand  pounds,  part 
of  the  five  thousand  pounds  and  paid  off  the  mortgage 
with  it.  This  was  held  to  have  redeemed  the  legacy 
pro  tanto,  and  that  the  specific  legatees  should  have  no 
relief  from  the  funds  by  will  appointed  for  payment 
of  the  mortgage,  (c) 

So  where  the  testator  gave  a  legacy  of  the  dividends 
and  income  of  eight  thousand  dollars,  government  stock, 
for  the  separate  use  of  the  testator's  niece,  concluding 
"  and  I  give  also  to  the  said  trustees  the  principal  of 
the  said  eight  thousand  dollars  as  the  same  shall  be 
paid  off  and  discharged  by  the  government  of  the 
United  States,  to  be  held  in  trust  and  applied  as  be- 
fore directed."  Between  the  date  of  the  will  and  the 
death  of  the  testator,  the  stock  was  reduced  by  annual 

(a)  1  P.  Win.  540.  n.  1  Atk.  414.  2  Vez.  562.        (c)  2  Cox's  Rep.  184. 
(6)  Ca.  Temp.  Talb.  227.  2  Mad.  R.  223. 


184  OP  THE  PAYMENT  OF  LEGACIES.      [BOOK  m. 

sums  paid  by  the  government  in  extinguishment  of 
the  public  debt.  It  was  held  that  the  legacy  was  spe- 
cific, and  that  the  legatee  was  only  entitled  to  it  as  it 
was  reduced  at  the  death  of  the  testator,  (a) 

The  purpose  to  which  a  general  legacy  is  to  be 
applied  will  not  alter  its  nature-,  as  where  it  is  direct- 
ed to  be  laid  out  in  lands.  (6)  Personal  annuities  giv- 
en by  will  are  also  general  legacies,  (c)  The  same 
legacies  may  be  specific  in  one  sense  and  pecuniary 
in  another-,  specific  as  given  out  of  the  particular  fund 
and  not  out  of  the  estate  at  large  j  pecuniary  as  consist- 
ing only  of  definite  sums  of  money  and  not  amounting  to 
a  gift  of  the  fund  itself  or  of  any  aliquot  part  of  it.  (d) 

Under  the  denomination  of  a  specific  legacy  two 
kinds  of  gifts  are  included.  As  first  where  a  certain 
chattel  is  particularly  described  and  distinguished 
from  all  others  of  the  same  species  as  "  a  diamond 
ring  presented  me  by  A:"  and  second  where  a  chat- 
tel of  a  certain  species  is  bequeathed,  without  any  de- 
signation of  it  "  as  a  diamond  ring.3'  A  bequest  in  the 
former  mode,  can  be  satisfied  only  by  the  delivery  of 
the  identical  subject;  and  if  it  be  not  found  among  the 
testator's  effects,  it  fails  altogether,  unless  it  be  in 
pawn,  when  the  executor  must  redeem  it  for  the  lega- 
tee, (e)  But  a  bequest  of  the  latter  description  may  be 
fulfilled  by  the  delivery  of  any  thing  of  the  same 
kind.(/) 

Although  the  courts  are  averse  to  construing  lega- 

(a)  Cuthbert  v.  Cuthbert,  3  Yeates  Bea.  5. 

436.  («)  Ashburner  v.  M'Guire,   2  Rro. 

(6)  Hinton  v.  Pink.  1  P.  Wms.  540.  Ch.  R.  1 13.  4  Bac.  ab.  335.  Toll. 

Hume  v.  Edwards.  3  Atk.   693.  Ex.301. 

(t)Lewin  v.  Lewin.  2  Vez.  417.  (/)  Ellis  v.    Walker.  Amb.  310. 

2Fonb.  378.  Purse  v.    Snaplin.  1    Atk.  415. 

(d)  Smith  v.   Fitzgerald.  3  Vez.  &  2  Fonb.  374.  n.  o. 


.  iv.]       OF  THE  PAYMENT  OF  LEGACIES.  185 

cies  to  be  specific;  (a)  yet  if  the  words  clearly  indi- 
cate an  intention  to  separate  the  particular  thing 
bequeathed,  from  the  general  property  of  the  testa- 
tor, they  shall  have  that  operation.  Hence  under  some 
circumstances  pecuniary  legacies  are  held  to  be  spe- 
cific, as  a  certain  sum  of  money  in  a  certain  bag  or 
chest;  (b)  or  the  bequest  of  a  sum  of  money  in  the 
hands  of  A;  (c)  or  of  two  thousand  pounds,  the  bal- 
ance due  to  the  testator  from  his  partner,  on  his  last 
settlement  with  him,  if  the  testator  did  not  draw 
such  money  out  of  the  trade  before  he  died,  (d)  So 
a  devise  of  a  rent  charge  out  of  a  term  for  years,  (e) 
and  the  bequest  of  a  bond  or  stock  in  a  particular 
fund  have  been  thus  classed:  (/)  so  also  has  a  legacy 
to  be  paid  out  of  the  profits  of  a  farm  which  the  tes- 
tator directed  to  be  carried  on.  (g)  And  a  bequest  of 
all  the  testator's  personal  estate  in  a  certain  town 
has  been  so  considered,  (h) 

Specific  legacies  may  be  carved  out  of  a  specific 
chattel;  as  where  the  testator  gives  part  of  the  debt 
due  to  him  from  A,  it  will  be  a  specific  legacy,  (i)  So 
where  he  bequeaths  a  part  of  his  stock  in  a  specific 
fund,  (fc) 

And  where  A  devised  to  his  wife  all  his  personal 
estate  at  B,  this  was  held  to  oe  a  specific  legacy,  and 
the  same  as  if  he  had  enumerated  all  the  particulars 
there.  (I) 

(a)  Ambl.  310.  Hayw.  228.  (»•)  Ib.  125.  I  P.  Wms.  598. 

(b)  Lawsou  v.  Slitch,  1   Atk.  508.     (/t)  Sayer  v.    bayer.   Prec.  in  Ch. 

(c)  Hinton  v.  Parke   1  P.  Wm.  540.         392.  1  Wash.  58. 

(</)  Ambl.  310.  (?)  Heath  v    Perry,  3    Atk.    103. 

(e)  Long.  v.fShort,  1  P.  Wms.  403.  (k)  Sleech  v.  Thorington.  2  Vez. 

(/)  2  Bro.  Ch.  Rep.  108,  Mayot  v.  563.  2  Fonb.  374.    o.  note. 

Mayot.  (/)  2  Fonb.  376.  2  Vern.  688. 

Aa 


186*  LEGACIES  LAPSED  OR  VESTED.        [BOOK  in. 

Legacies  are  either  lapsed  or  vested.  It  is  a 
general  rule  that  if  a  legatee  die  before  the  testator, 
the  legacy  shall  lapse  and  sink  into  the  residuum 
of  the  testator's  personal  estate,  (a)  Nor  is  it  an  excep- 
tion that  the  legacy  is  left  to  A,  his  executors,  admin- 
istrators or  assigns.  (6)  And  the  rule  is  the  same 
whether  the  bequest  be  specific  or  general,  (c)  And 
although  in  the  bequest  of  a  legacy  the  testator  ex- 
press an  intention,  that  it  should  not  lapse  in  case  the 
legatee  die  before  him,  that  will  not  exclude  the  next 
of  kin.  (d.)  Yet  a  bequest  may  be  specially  framed 
so  as  to  prevent  its  lapse  on  the  death  of  the  legatee; 
as  if  in  the  case  of  the  death  of  A,  before  the  tes- 
tator, other  persons  are  named  to  take,  the  legacy 
shall  vest  in  such  nominees,  (e)  Nor  is  a  legacy  to 
two  or  more,  within  the  rule;  for  it  is  settled,  that  a 
legacy  to  several  persons  is  not  extinguished  by  the 
death  of  one  of  them,  but  shall  vest  in  the  survivor. 
(/)  But  where  two  several  legacies  were  given  to 
A  and  B,  and  in  case  A  or  B  died  without  lawful  issue, 
then  the  whole  of  the  said  two  legacies  to  go  to  the 
survivor,  his  executors,  administrators  or  assigns: 
and  A  died  without  issue  in  the  testator's  life  time,  it 
was  held  to  have  lapsed-,  the  contingency  on  which  it 
was  given  over,,  being  too  remote.  Nor  does  the 
rule  extend  to  a  legacy  given  over  after  the  death  of 

(a)  4  Bac.  ab.  387.   1  P.  Wms.   83.  (rf)  Sibley  v.  Cook.  3  Atk.  572. 

3  Bro.  c.  c.    142.  Weishaupt  v.  (e)  3  Atk.  572. 

Brehman.  5  Binn.  118.  (f)  Northey  v.  Bwrbage,  Gilb, 

(6)  I  Bro.  C.  Rep.  84.  Rep.  137.  2  Atk.  220.  Ryder  v.. 

(c)  Robinson  v.  Martinet,  al.  2.  Wager,  2  P.  Wm.  331. 

Yeates,  525. 


CHAP,  iv.]       LEGACIES  LAPSED  OR  VESTED.  187 

the  first  legatee,  for  in  such  case  the  legatee  in  re- 
mainder shall  have  it  immediately,  (a)  Nor  will  a 
legacy  lapse  by  the  death  of  the  legatee  in  the  tes- 
tator's life  time,  if  he  is  to  take  in  character  of  trus- 
tee. (6) 

A  bequest  by  the  obligee  to  one  of  joint  obligors 
of  a  debt  due  on  the  bond,  in  these  terms,  "  I  remit 
and  forgive  to  T.  W.  the  sum  of  five  hundred  pounds 
which  he  stands  indebted  to  me  on  his  bond;  and  I 
direct  the  said  bond  to  be  delivered  up  to  him  and  can- 
celled" is  merely  a  personal  legacy  to  T.  W.  and 
lapses  by  his  death  in  the  life  time  of  the  testator: 
such  bequest  not  operating  by  way  of  equitable  re- 
lease, or  as  an  extinguishment  of  the  debt.  Therefore 
the  surviving  co-obligor,  and  the  representatives  of 
the  deceased  legatee  are  not  discharged  from  the 
payment  of  the  money  due  on  the  bond,  (c) 

A  legacy  is  also  lapsed,  if  before  the  condition  on 
which  it  is  given  by  the  will  be  performed,  the  lega- 
tee die,  or  if  he  die  before  it  is  vested  in  interest,  (d) 
So,  where  a  bequest  was  to  a  son  on  his  accomplish- 
ing his  apprenticeship  with  the  dividends  in  the  mean 
time  for  maintenance,  and,  in  case  he  should  die  be- 
fore he  accomplisJied  his  apprenticeship,  then,  and  in 
such  case,  to  other  children,  and  the  legatee  died, 
having  accomplished  his  apprenticeship  in  the  testa- 
tor's life  time,  it  was  held  a  lapsed  legacy. 

But  if  a  legacy  be  left  to  A,  payable  at  a  certain 

(a)  1    And.  33.  pi.    82.    Miller  v.         Foab.  369.  n.  G. 

Warren,  2  Vern.   207.   Perkins  (c)  2  Price  Rep.  34.    2  Cox.  Rep. 

v.   Mickelthwaite,     1    P.    Wms.          118. 

274.  Toll.  Ex.  304.  (d)  2  Fonb.  368.  1  Bac.  ab.  410. 
(6)    1  Vez.    MO.     2  Ver.  468.    2 


188  LEGACIES  LAPSED  OR  VESTED.     [BOOK  in. 

age,  it  is  vested  and  transmissible;  being  debitum  in 
presenti  though  solvendum  in  futuro.  (a)  But  if  the 
legacy  be  left  to  him  at,  or  when,  he  attains  a  certain* 
age,  it  is  otherwise.  (6)  But  if  such  legacies  be 
charged  on  real  estate,  or  upon  land  to  be  purchased 
with  the  residue  of  the  personal  estate-,  in  either 
case,  they  shall  equally  lapse  for  the  benefit  of  the 
heir,  (c) 

So  if  a  bequest  be  to  A  for  life,  and  after  the  death 
of  A  to  B,  the  bequest  to  B,  is  vested  on  the  death 
of  the  testator,  and  will  not  lapse  by  the  death  of  B 
in  the  life  time  of  A.  (d) 

Where  a  man  bequeaths  a  sum  of  money,  gene- 
rally, to  be  equally  divided  among  the  children  of  A, 
those  only  who  are  in  being  at  the  death  of  the  tes- 
tator shall  take,  (e)  But  where  the  testator  declares 
his  intent  that  the  legacies  shall  not  vest  till  a  future 
time,  then  all  those  who  were  born  at  the  time  of  dis- 
tribution shall  take,  unless  there  be  something  in  the 
will  to  the  contrary.  (/) 

The  rule  of  law  by  which  legacy  becomes  lapsed, 
on  the  death  of  the  legatee  before  the  testator,  hav- 
ing been  productive  of  much  hardship,  in  cases  of  le- 
gacies to  children,  was  abrogated,  as  to  them,  by  an 
act  of  assembly,  passed  nineteenth  March,  1810.  (g) 

This  act  provides,  that  no  devise  or  legacy  in  fa- 
vour of  a  child  or  other  lineal  descendant  of  a  testa- 
tor, shall  be  deemed  to  lapse  or  become  void,  by 

(a)  Price  v.  Watkins.   1  Dall.  8.  347.  1  P.  Wm.   342.   Toll.  Ex. 

(6)  2  Fonb.  371.   not.  K-  2  Vent.  306. 

347.  (e)  Pemberton  v.  Parke.  5  Binn. 

(c)  2  Cox's  Rep.  247.    2  Yeates,  607. 
369.  (/)  Ibid. 

(d)  2  Fonb.  371.  o.  K.  2  Ventr.  (g)  5  Sm.  L.  112. 


OHAP.  iv.]  ASSENT  OF  EXECUTOR.  189 

reason  of  the  decease  of  such  devisee  or  legatee  in 
the  life  time  of  the  testator,  if  such  devisee  or  le- 
gatee shall  leave  issue  surviving  the  testator,  but 
that  such  devise  or  legacy  shall  be  good  and  availa- 
ble in  favour  of  such  surviving  issue,  with  like  effect 
as  if  such  devisee  or  legatee  had  survived  the  testa- 
tor: and  that,  the  act  shall  not  be  so  construed,  as  to 
defeat  the  intention  of  any  testator  to  exclude  such 
surviving  issue  or  any  of  them. 

But  the  bequest  of  a  legacy,  whether  it  be  general 
or  specific,  transfers  only  an  inchoate  property  to  the 
legatee.  To  render  it  complete  and  perfect  the  as- 
sent of  the  executor  is  requisite j  because  he  is  bound 
to  see  whether  there  be  funds  sufficient  for  the  pay- 
ment of  the  testator's  debts,  (a) 

In  case  the  assets  prove  inadequate,  the  legacies 
must  abate  or  fail  altogether,  according  to  the  extent 
of  the  deficiency.  If  on  a  failure  of  assets,  he  pay 
legacies,  he  makes  himself  personally  responsible  for 
the  debts  to  the  amount  of  such  legacies.  Hence  the 
assent  of  the  executor  is  necessary,  before  the  legacy 
can  be  absolutely  vested-,  and  such  assent  is  evidence 
of  assets,  and  an  admission  on  the  part  of  the  execu- 
tor that  the  fund  is  competent,  (b) 

Without  such  assent,  the  legatee  cannot  take  or  re- 
tain  possession  of  a  legacy,  although  the  testator  di- 
rect that  he  shall  do  so;  for  if  this  were  permitted,  a 
testator  might  appoint  all  his  effects  to  be  thus  taken 
in  fraud  of  his  creditors,  (c) 

(a)  Toll.  Ex.  306.'  Harg.  Co.  Lilt.  (&)  Toll.  Ex.  307.  Off.  of  Ex.  27, 
111.  Abney  v.  Millar.  2  Atk.  28.  5  Munf.  Rep.  103,  175, 160. 
598.  Wash.  Rep.  308.  (c)  Off.  of  Ex.  223. 


190  ASSENT  OF  EXECUTOR.  £BOOK  m. 

Yet  previously  to  the  assent  of  the  executor,  a  le- 
gatee has  such  an  interest  in  the  thing  bequeathed, 
as  that  in  the  case  of  his  death  before  it  be  paid  or 
delivered,  it  shall  go  to  his  representatives,  (a) 

If  A  release  a  debt  due  to  him  from  B,  still  the 
assent  of  the  executor  is  necessary  to  perfect  the  gift. 
Because,  it  may  be  necessary  to  collect  this  for  the 
payment  of  the  testator's  debts  (6) 

The  assent  of  the  executor  is  not  required  to  be 
given  in  any  specific  form. 

It  may  be  express,  or  implied  from  indirect  ex- 
pressions or  particular  acts.  And  very  slight  cir- 
cumstances will  be  indicative  of  this  assent,  (c) 

The  assent  of  the  executor  to  a  tenant  for  life  of  a 
legacy,  will  enure  to  the  remainder  man.  (d) 

His  assent  may  be  absolute  or  conditional.  In  the 
latter  case,  the  condition  must  be  precedent,  and  if 
it  be  not  performed,  the  legacy  does  not  vest;  a  subse- 
quent condition  is  void,  and  a  failure  to  perform  it 
shall  not  devest  the  legatee  of  his  legacy,  (e) 

The  assent  of  the  executor  has  relation  to  the  time 
of  the  testator's  death,  and  confirms  an  intermediate 
grant  by  the  legatee,  of  his  legacy.  (/)  The  assent 
once  given  can  never  be  revoked,  and  notwithstand- 
ing a  subsequent  dissent,  a  specific  legatee  may  take 
the  legacy,  (g)  and  has  a  lien  upon  the  assets  for  that 
particular  part  and  may  follow  them,  (h) 

(a)  Off.  Ex.  28.  (rf)  Com.  Dig.  Adm.  c.  6. 

(6)  Off.  of  Ex.  29,  30.  2  P.  Wms.  (e)  Jb.  8. 

332.  (/)  Off.  Ex.  250. 

fc)  Toll.  Ex.  309.  1  Vern.  94,  460.  (#)  Ib.  227. 

2  Vent.  358.  4  Bac.  ab.  445.  Off.  (ft)  Toll.  Ex.  311, 

Ex.  226. 


BHAP.IV.J  ASSENT  OF  EXECUTOR. 

If  the  executor  be  a  legatee,  he  must  also  assent 
to  his  own  legacy;  if  he  take  possession  of  it  gene- 
rally, he  shall  hold  it  as  executor,  (a)  And  his  assent 
in  this,  as  in  other  cases,  may  be  express,  or  implied 
by  some  act  or  declaration,  indicative  of  his  determi- 
nation to  accept  the  legacy,  (b]  In  other  respects  in 
regard  to  the  legacy,  he  is  like  other  legatees,  (c) 
If  a  legacy  be  left  to  one  as  an  executor,  he  must 
prove  the  will,  and  either  act,  or  show  his  intention 
to  act,  before  he  shall  become  entitled  to  it.  (d)  And  if 
he  prove  the  will,  and  if  it  appear  that  he  really  had  no 
intention  to  act,  he  is  not  entitled  to  his  legacy,  (e)  But 
if  a  legacy  be  left  to  a  trustee,  it  is  not  necessary  that 
he  should  do  any  thing  to  entitle  him  to  take.  (/) 

When  no  time  is  fixed  for  the  payment  of  legacies, 
they  are  not  demandable  until  the  end  of  a  year  from 
the  death  of  the  testator,  (g) 

There  is  a  difference  between  the  legacy  of  a  sum 
of  money  to  one  for  term  of  life,  and  a  bequest  of  £ 
sum  to  be  paid  annually  for  life.  In  the  first  case, 
the  legacy  not  being  payable  till  the  end  of  the  year 
from  the  testator's  death,  carries  no  interest  for  that 
year.  But  in  the  latter  case,  -the  first  payment  of  the 
annuity  must  be  made  at  the  end  of  the  first  year,  (h] 

If  a  legacy  to  an  infant  be  payable  at  twenty -one 
years,  and  he  die  before;  his  representative  cannot 
claim  it,  till  in  case  he  had  lived,  he  would  have  come 
of  age;  unless  it  be  payable  with  interest,  when  £uch 

(a)  Toll.  Ex.  344.  Bac.  ab.  tit.  Ex.  (/)   1  Vez.  and  Bea.  134. 

(fc)  Ib.  345,  6.  Com.  Dig.  Adm.  6,  7.  (#)  Act  of  Ass.   1772,  s.  7.  1  Sm. 

(c)  Toll.  Ex.  347.  L.  383.  Eyre  v.  Golding,  5  Bin. 

(d)  2  Cox  R.  95.  3  Vez,  Jr.  148.  475.  2Salk.  415. 

4  Vez.  Jr.  212.  f/i)  5  Bion.  475.  $.  C.  2  BrownN 

(c)  Cox  R.  302.  '    Rep.  Ap.  89. 


192  LEGACIES  WHEN  PAYABLE.        [BOOK  HI. 

representative  has  a  right  immediately  to  receive 
it.  (a) 

But  if  a  legacy  be  payable  out  of  land  at  a  future 
day,  although  given  with  interest,  if  in  the  meantime 
the  legatee  die  before  the  day  of  payment,  the  court 
will  not  direct  the  legacy  to  be  raised,  until  the  time 
for  the  payment  arrives,  although  chancery  will  secure 
a  personal  fund  for  a  future  or  contingent  legatee,  (b) 
In  case  a  legacy  be  left  to  A  at  twenty-one,  and  if  he 
die  before  that  age,  then  to  B;  and  A  die  before  he 
attains  twenty -one,  B  shall  be  entitled  to  the  legacy 
immediately;  for  he  does  not  claim  under  A,  but  the 
devise  over  is  a  distinct,  substantive  bequest,  to  take 
effect  on  the  contingency  of  A's  dying  during  his  mi- 
nority, (c) 

Where  the  testator  bequeaths  a  legacy  of  five 
hundred  dollars  to  A,  to  be  paid  her  in  one  year  after 
his  decease;  and  after  other  devises  and  legacies,  be- 
queathed the  rest  and  residue  of  his  estate,  real  and 
personal,  to  his  brothers  and  sisters  B,  C  and  D,  their 
heirs  and  assigns  as  tenants  in  common,  provided, 
that  his  sister  E,  "  keep  the  whole  in  her  possession 
during  her  widowhood;"  it  was  held,  that  the  payment 
of  A's  legacy  was  not  to  be  postponed  until  after  the 
death  of  E,  but  was  to  be  made  in  one  year  after  the 
testator's  decease,  (d) 

The  executor  must  be  careful  to  pay  the  legacy 
into  the  hand  that  is  entitled  to  receive  it.  No  re- 
lation of  an  infant  as  such  has  a  right  to  receive 

(a)  Vern.  31,  199,  283.  2  P.  Wms.  Wm.  478. 

33!5.  Toll.  Ex.  313.       N  (d)    Hassencleaver  vs.   Tucker.  4 

(6)  2  Cox  Rep.  15.  Binn.  525,  Ap. 
(c)  1  Eq.   ca.  ab.  229,  300.  2  Pr. 


CHAP,  iv.]     OF  THE  PAYMENT  OF  LEGACIES.  193 

it.  (a)  The  guardian  is  the  proper  person,  and  where 
there  is  no  guardian,  the  Orphan's  Court  will  appoint 
one  for  this  purpose, — most  commonly  the  parent,  if 
trustworthy. 

If  an  executor  have  a  general  power  to  divide  a 
sum  of  money  among  children,  at  his  discretion,  he 
is  bound  to  make  a  reasonable  disposition  of  it.  (6) 
But  he  may  give  a  larger  share  to  one  of  the  objects 
than  to  another,  provided  the  share  of  both  be  sub- 
stantial, and  not  illusory  or  merely  nominal,  (c) 

If  a  testator  bequeath  part  of  his  effects  to  his  wife 
to  be  disposed  of  by  her,  amongst  her  next  of  kin,  as 
she  shall  think  proper,  and  the  wife  make  no  dispo- 
sition, this  part  will  be  held  a  trust  for  her  next  of  kin 
at  the  time  of  her  death,  (d) 

If  a  legacy  be  given  to  a  married  woman,  it  must 
be  paid  to  her  husband,  though  the  wife  live  sepa- 
rate from  the  husband  without  alimony,  or  be  di- 
vorced a  mensa  et  thoro.  (e)  And  where  a  feme  covert 
was  entitled  under  a  marriage  settlement,  to  a  sum 
of  money  settled  on  her  to  her  sole  and  separate  use, 
and  after  her  death  without  issue,  to  her  next  of  kin, 
it  may  be  paid  to  her  husband,  if  the  wife  so  direct, 
by  an  instrument  freely  and  voluntarily  executed 
under  her  hand  and  seal.  (/) 

In  England,  wThere  a  legacy  is  left  to  the  wife  ex- 
ceeding two  hundred  pounds,  the  executor  may  de- 

(a)  Toll,  315,  16.  Cooper  v.  Thorn-  (d)  3  Vez.  and  Bea.  98. 

ton.  3  Bro.  Ch.  Rep.   96,  1C6.  4  (c)  Toll.  Ex.  320.   Palmer  v.  Tre- 

Uurn.  Eccl.  I,.  321.  vor.  I  Vern.  261.  4  Burn.  EC. 

(6)  4  Bac.  \b.  340.  1  Vern.  66.  2  L.  332. 

Vern.  513.  Toll.  Ex.  319.  (/)  Dallam  v.  Wampole  et  *1.  1 

fc)  1  Vez.  57.  2  Vez.  640.  1  T.  R.  Pet.  Rep.  116. 

432. 

Bb 


194  OF  THE  PAYMENT  OF  LEGACIES.    [BOOK  m, 

cline  paying  it  to  the  husband,  unless  he  will  make 
an  adequate  settlement  upon  her.  (a)  And  the  court 
of  Chancery  will  compel  him  to  the  same  terms,  un- 
less the  wife  consent  to  his  receiving  it  without  them. 
But  the  courts  in  Pennsylvania  deny  that  they  pos- 
sess the  same  power,  (fe) 

A  legacy  must  be  paid  in  the  currency  of  the 
country  in  which  the  testator  was  a  resident  at  the 
time  of  making  the  will,  (c) 

In  a  suit  on  a  penal  bond  given  for  a  legacy,  where 
a  principal  point  of  dispute  is,  in  what  kind  of  money 
the  legacy  is  payable,  a  witness  may  be  examined 
by  the  legatee  as  to  his  knowledge  of  the  value  of 
the  testator's  estate;  but  evidence  as  to  the  general 
reputation  of  such  value  is  not  admissable.  (rf) 

Where  a  long  period  of  time  has  elapsed  from  the 
giving  of  a  penal  bill  for  a  legacy,  the  records  of 
suits  brought  in  the  interval  by  the  plaintiff  against 
the  executor  to  recover  the  same,  are  evidence  in  a 
suit  on  such  penal  bill  to  rebut  the  presumption  of 
payment,  (e) 

No  presumption  of  payment  of  a  penal  bill  given  for 
a  legacy,  arises  from  length  of  time,  where  the  suit  was 
brought  by  the  legatee  in  fifteen  years,  after  the  time 
when  the  legacy  was  payable,  which  abated  by  the 
marriage  of  the  plaintiff,  and  another  suit  was  brought 
eight  years  afterwards,  and  the  plaintiff  continued 
from  that  time  endeavouring  to  obtain  payment  of  the 
legacy;  and  it  is  immaterial  what  form  of  action  was 

(a)  5  Vez.  Jun.  742.  in  note.  (d)    Me  Cullough  v.  Montgomery 

(6)  Yohe  v.  Bar  net.  1  Binn.  365.  and  wife.  7  Sergt.  and  R.  17. 

(c)  Toll.  Ex.  321,  322.  (e)  Ibid. 


«HAP.  iv.j     OF  THE  PAYMENT  OF  LEGACIES.  195 

used  if  the  recovery  of  the  legacy  was  the  object  of 
the  suit  (a) 

The  Orphan's  Court  cannot  receive  payment  of 
a  legacy  for  the  use  of  a  legatee,  when  there  is  no 
suit  pending,  nor  account  settled;  and  therefore, 
such  payment  by  an  executor  cannot  avail  him.  (6) 
Nor  is  a  legatee  concluded  by  a  settlement  in  the  Or- 
phan's Court  by  an  executor,  to  which  the  legatee  is 
no  party,  in  which  the  executor  is  credited  for  the 
payment  of  the  legacy,  (c) 

Interest  on  legacies  generally  speaking,  is  payable 
from  a  year  after  the  death  of  the  testator;  except  in 
case  of  a  child  not  otherwise  provided  for,  when  in- 
terest is  allowed  from  the  testator's  death,  (d)  But 
if  a  father  give  a  legacy  to  a  child  payable  at  a  fu- 
ture day,  and  make  express  provision  for  mainte- 
nance out  of  another  fund,  the  legacy  shall  not  carry 
interest  until  the  time  of  payment,  (e) 

Where  a  legacy  is  given  to  a  child,  payable  at  tlie 
age  of  twenty-one,  without  mention  of  interest,  the  ge- 
neral rule  is,  that  interest  shall  be  allowed  from  the 
death  of  the  parent.  (/)  But  where  one  bequeathed 
to  the  four  children  of  his  nephew  the  sum  of  four 
hundred  pounds  each,  which  sums  he  directed  to  be 
placed  out  at  interest,  at  the  expiration  of  two  years 
after  his  decease,  for  the  benefit  of  the  said  legatees 
respectively,  and  the  principal  and  interest  to  be  paid 
as  the  children  should  respectively  attain  the  age  of 

(a)  7  Sergt.  and  R.  17.  tar.  5  Binn.  479.  Dawes  v.  Swan 

(b)  Ih.  4  Mas.  T.  R.  308. 

(c)  Ib.  (c)   1  Cox  Rep.  433. 
(</)  Eyre  v.  Golding.  5  Binn.  475.  (/)  5  Bino.  479. 

Toll.  Ex.  324, 325.  Miles  v.  Wis- 


196          OF  THE  PAYMENT  OF  LEGACIES.     [BOOK  in. 

twenty-one;  but  if  any  of  them  should  die  in  his  minori- 
ty without  issue,  the  share  of  such  child  so  dying 
should  be  equally  divided  among  his  brothers-,  it  was 
held,  that  the  legatees  were  not  entitled  to  interest 
during  their  minority,  but  that  it  must  accumulate,  and 
in  case  of  the  death  of  one  of  the  legatees  under  age, 
would  form  part  of  the  share  to  be  divided  among 
the  survivors,  (a) 

If  a  legacy,  whether  vested  or  not,  be  payable  on 
a  certain  day,  and  the  will  be  silent  with  respect  to 
interest,  it  is  a  general  rule,  that  the  interest  shall 
commence  only  from  that  time,  (b) 

If  legacies  are  given  to  A  and  B,  each  to  be  paid 
to  them  at  their  respective  ages  of  twenty -three 
years,  and  if  they  should  die  before  that  time,  then 
their  respective  legacies  to  sink  into  the  residue  of 
the  testator's  personal  estate,  such  legacies  do  not 
carry  interest,  and  no  maintenance  can  be  allowed  to 
the  legatees,  (c)  But  if  a  legacy  be  given  to  A,  to 
be  paid  at  twenty -one,  and  if  he  should  die  before  at- 
taining that  age,  then,  to  Bj  and  A  die  before  twen- 
ty-one, several  years  after  the  testator,  B  is  entitled  to 
interest  on  the  legacy  from  the  death  of  A;  for  though 
in  this  case  it  was  objected  that  this  being  as  a  new 
substantive  legacy  to  B,  the  executor  ought  to  have  a 
year's  time  for  the  payment  of  it-,  yet  the  court  held, 
that,  must  be  intended  from  the  death  of  the  testator; 
whereas,  here  the  testator  had  been  long  dead,  (d) 

If  a  legacy  be  left  to  an  infant  payable  at  twenty- 
one,  and  devised  over  on  his  dying  before  he  attains 


a)  5  Binn.  457.  (c)  Cox  Rep.  133. 

6)  3  Atk.  102,  716.  Toll.  Ex.  325.     (d)  2  P.  VVm.  4«L 


CHAP,  iv.]     OF  THE  PAYMENT  OF  LEGACIES.  197 

that  age,  and  such  event  happens,  the  interest  accu- 
mulated from  the  death  of  the  testator  to  that  of  the 
infant  shall  go  to  his  representatives,  and  not  to  the 
remainder  man.  (a) 

If  the  father  of  an  infant  be  living,  he  is  bound  by 
the  municipal  law  as  well  as  by  the  ties  of  nature  to 
maintain  his  child.  Nor  shall  the  interest  of  the 
child's  legacy  be  applied  to  that  purpose  unless  in 
cases  of  great  necessity  arising  from  the  distressed 
and  embarrassed  circumstances  of  the  parent.  (6)  In 
cases  so  pressing,  the  infant  shall  be  maintained  out  of 
the  interest  of  the  legacy,  whether  it  be  vested  or  con- 
tingent; and  although  the  legacy  be  devised  over,  on 
the  infant's  dying  before  he  attains  twenty -one.  (c)  In 
some  instances  where  the  will  has  contained  an  ex- 
press direction  for  maintenance  of  the  legatees,  and, 
there  have  been  other  children  not  the  object  of  the 
testator's  bounty,  such  maintenance  has  been  allowed 
on  the  ground  of  the  inability  of  the  father  to  educate 
the  favoured  children  in  a  manner  suitable  to  their 
fortune,  (d)  But  the  court  will  not  make  an  allow- 
ance to  a  father  for  the  maintenance  of  a  child  for  the 
time  past,  although  it  should  appear  that  he  had  not 
been  of  ability  to  maintain  him,  and  the  will  has  ex- 
pressly given  the  produce  to  trustees  for  the  child's 
maintenance,  (e) 

On  occasions  extremely  urgent,  the  guardian  may 
even  break  in  upon  the  principal-,  but  it  behooves 
him  to  take  great  care,  that  the  circumstances  of  the 

(a)  1  P.  Wm.  500.  Rep.  223. 

(6)  3  Atk.  60,  3^9.  1  Cox's  Hep.  80.  (e)  2  Andrew  v.  Partinjton,  2  Cox 

c)  3  Atk.  60.  Toll.  Ex.  327.  Rep.  223. 
U)  3  Vez.  Junr.  733.  4  Bro.   Ch. 


ADEMPTION  OF  LEGACIES.  [BOOK  HI. 

case  will  justify  him.  (a)  As  where  the  legacy  is  of 
small  amount  and  the  interest  altogether  inadequate 
to  the  necessities  of  the  infant.  (/>)  But  if  the  legacy 
be  devised,  in  case  of  the  infant's  dying  before  he 
comes  of  age,  the  principal  it  seems  shall  on  no  ac- 
count be  subject  to  such  diminution,  (c) 

On  the  payment  of  the  legacy,  the  executor  may 
and  ought  to  take  bond  of  the  legatee  with  two  suf- 
ficient sureties  in  double  the  amount  of  the  legacy 
given,  conditioned,  that  if  any  part  or  the  whole 
should  be  wanting  at  any  time  thereafter,  to  discharge 
any  debt  or  legacy,  which  the  executor  shall  not  have 
other  assets  to  pay,  that  the  legatee  will  refund  the  le- 
gacy or  so  much  thereof  as  shall  be  necessary  to  pay 
said  debts  or  a  proportionate  part  of  said  legacies,  (d) 

A  legacy  may  be  adeemed  or  taken  away  by  the 
testator.  Ademption  may  be  expressed  or  implied. 
The  implication  arises  where  the  testator  does  some 
act  relative  to  the  legacy  or  legatee  which  is  incon- 
sistent with  the  bequest.  As  where  a  father  makes 
provision  for  a  child  by  will;  and  after  gives  to  such 
child,  if  a  daughter,  a  portion  in  marriage;  or  if  a  son, 
a  sum  of  money  to  establish  him  in  life,  provided  such 
portion,  or  sum  of  money  be  equal  to  or  greater  than 
the  legacy,  this  is  an  implied  ademption  of  it;  for  the 
law  will  not  intend  that  the  father  designed  two  por- 
tions for  the  same  child,  (e)  But  this  implication  will 
not  arise  if  the  provision  in  the  will  is  created  by  a 

(a)  Harvey  v.   Harvey,  2  P.  Wm.  Sm.  L.  384. 

21.   Toll.    Ex.    327.  (e)  2  Fonb.  354.  note  A.  Toll.  Ex. 

(6)  Barlow   v.  Grant.  1  Vern.  255;  329  Hartop  v.    Whitmore.  1   P. 

(c)  Bac.  ab.  442.  Pre.  in  Chan.  IQo!"  Wms.  680.  Duffield  v.  Smith,  2. 
Toll.  Ex.  328.  Vern.  257.  Farnham  v.  Phillips, 

(d)  Act  21    March,    1772,  s.  4.    1  2  Atk.  216. 


CHAP,  iv.]  ADRMPTION  OF  LEGACIES.  199 

bequest  of  the  residue;  (a)  nor  if  the  provision  in  the 
father's  life  time  be  subject  to  a  contingency;  (6)  nor 
unless  it  be  of  the  same  nature  with  the  legacy,  (c) 
nor  if  it  be  expressly  in  satisfaction  of  a  claim  aliunde; 
nor  if  the  portion  be  given  absolutely,  and  the  legacy 
under  limitations;  (d)  nor  if  the  testator  were  a  stran- 
ger; (e)  nor  if  the  testator  be  the  uncle  of  the  legatee-, 
nor  if  the  legatee  be  an  illegitimate  child,  unless  the 
testator  placed  himself  clearly  in  loco  parentis,  (j  )  and 
such  implication  is  always  liable  to  be  repelled  by 
evidence,  (g)  But  if  the  testator  by  a  codicil  subse- 
quent to  the  apportioning  or  advancement  of  the  child, 
ratify  and  confirm  his  will,  this,  although  a  new  pub- 
lication shall  not  overturn  the  presumption,  that  he 
meant  to  adeem  the  legacy,  for  such  words  are  merely 
formal,  (/i) 

In  respect  to  the  ademption  of  a  legacy,  all  the 
cases  concur  in  the  principle,  that  the  intention  of 
the  testator  must  govern;  but  in  the  application  of 
that  principle  or  what  shall  amount  to  evidence  of 
such  an  intention  they  are  in  many  instances  incapa- 
ble of  being  reconciled,  (i)  Thus  in  some  cases  it  has 
been  held,  that  where  a  sum  of  money  is  bequeathed 
out  of  a  particular  fund,  such  legacy  is,  in  its  nature 
general,  a  legatum  inuumeratis;  and  if  the  testator  in  his 
life  time  receive  it,  it  must  be  made  good  to  the  legatee, 

(a)  2  Atk.  216.  (/)  Brown  v.  Peck.  1  Eden's  Rep. 
(6)  Spinks  v.  Robins.  2  Atk.  491.  140. 

(c)  Grace   v.   Earl   of  Salisbury,  I  (g)  2  Atk.  516.    Deheze  v.  Mann. 
Bro.  Ch.  Rep.  425.  2  Bro.  G'b.  Rep.  165.  519. 

(d)  Toll.  Ex.  330.  Baugh  v.  Reed.  .  (h]  Irod  v.    Hunt.  2  Freem.    224. 
3  Bro.  Ch.  Rep.  192.  Tbelluson  v.  Woodford,  4   Mad. 

(c)  Shordal  v.  Jekyll.  2  Atk.  516.         Rep.  421. 
Powel  v.  Clearer,  2  Bro.  Ch.     (i)  Toll.  Ex.  330. 
Rep.  499. 


200  ADEMPTION  OF  LEGACIES.  [BOOK  HI. 

out  of  the  general  assets;  for  from  that  act  of  the  tes- 
tator no  presumption  can  be  raised  of  his  intention  to 
revoke  his  bounty.  («)  In  other  cases  it  has  been  de- 
cided that  such  a   legacy  under  the   same  circum- 
stances is  adeemed,  (b)  Some  authorities  distinguish 
between  the  bequest  of  a  sum  of  money  to  be  satisfi- 
ed out  of  a  particular  fund,  and  consequently  a  gene- 
ral legacy,  and  a  bequest  of  a  specific  debt;  that  the 
former  is  not  adeemed,  while  the  latter  is  adeemed 
by  payment  to  testator,  (c)  But  these  last  mentioned 
cases  differ  in  their  construction  of  what  shall  be  the 
bequest  of  a  general  legacy  as  opposed  to  that  of  a 
specific  debt.     Some  adopt  a  distinction  between  the 
bequest  of  a  certain  sum  of  money  due  from  a  particu- 
lar person,  as  "  five  hundred  pounds  due  on  a  bond 
from  A,''  and  a  bequest  of  such  debt  generally,  as  of 
the  bond  of  A;  that,  in  the  former  instance,  the  lega- 
cy is  pecuniary,  in  the  latter  specific,  (d)  But  accord- 
ing to  other  cases,  this  distinction  is  too  slender  to 
be  relied  upon,  (e)  A  difference  also,  has  in  some  in- 
stances been  taken  between  a  compulsory  and  a  vo- 
luntary payment  to  the  testator  of  such  debt-,  in  other 
words  where  the  testator  calls  in  a  debt,  which  he  has 
bequeathed,  and  where  the  debtor,  unprovoked  and 
without  application  thinks  fit  to  pay  it;  that  in  the  for- 
mer instance,  it  is  the  act  of  the  testator,  and  conse- 
quently an  ademption;  in  the  latter  he  is  merely  pas- 
sive, and  cannot  be   presumed  to  have  changed  his 

(a)  4  Bac.  ab.  355  2  Bro.  Ch.   Rep.  (c)  Hamblingv.  Lister,  Ambl.  401. 

108.     Ashburner    v.      M'Guire,  (d)  Rider  v.  Wager.  2  P.  VVms.  330. 

Pawlet's  case,  Raym.  335.  note  r.  Att'y.  Gen.  v.  Parkin, 

(6)  3  Bro.  Ch.  Rep.  431.  2  Fonbl.  Amb.  566. 

367.  n.  f.   Badrick  v.  Stephens,  (c)  Ashburner  v.  M'Guire,  2  Bro, 

3  Bro.  Ch.  Rep.  431.  Ch.  Rep.  11 1.  I  Eq.  Cas.  ab. 


«HAP.  iv.]  ADEMPTION  OF  LEGACIES.  201 

mind,  (a)  But  the  doctrine  of  some  cases  is,  that  this 
distinction  has  no  weight,  (b)  and  of  others  that  it  has 
no  existence,  (c)  and  that  the  case  is  not  varied  by 
the  mode  of  payment.     In  another  class  of  cases  this 
distinction  between  a  compulsory   and  a   voluntary 
payment  has  been  recognized  as  very  important,  but 
not  as  an  absolute  rule  of  decision,  on  the  principle, 
that  the  testator's  calling  for  payment  is  not  of  itself 
sufficient  evidence  of  an  intention  to  adeem,  but  an 
equivocal  act  requiring  explanation,  (d) 

It  is  however,  clear,  that  if  a  legacy  be  of  a  specific 
chattel,  and  the  testator  alter  the  form,  so  as  to  alter 
the  specification  of  the  subject,  as  if  after  giving  a 
gold  chain  by  his  will,  he  convert  it  into  a  cup-,  or 
after  he  has  bequeathed  wool,  he  make  it  into  cloth, 
or  a  piece  of  cloth  into  a  garment-,  the  most  obvious 
conclusion  that  can  be  formed  in  such  a  case  is,  that 
he  has  changed  the  intention  he  had  expressed  in  his 
will-,  therefore  in  such  instances  the  legacy  shall  be 
adeemed,  (e)  So  if  he  bequeath  stock  in  a  particular 
fund,  and  sell  it  out  subsequently  to  the  making  of  the 
will,  this  on  the  same  principle  amounts  to  an  ademp- 
tion.  (/)  But  if  A  bequeath  so  much  stock  to  B,  and 
after  making  his  will,  sell  it  out,  and  then  buy  in  again 
the  same  quantity  of  stock,  this  is  no  ademption-,  for 
if  the  selling  the  stock  be  evidence  of  his  having  al- 
tered his  intention,  his  buying  in  again  is  equally 

(a)  Crockal  v.  Crockat.  2  P.  Wm.  (c)  Ambl.  566.  2  Bro.  Ch.  R.  109. 

165.  330,  n.  l.Bronsdon  v.  BroDS-  (d)  Urinkwater  v.  Falconer,  2  Vetf, 

don.  Amb.  57.  623.  Hambling  v.   Lister.  Ambl. 

(6)  Earl  ofThormond,  v.   Suffolk,  1         401. 

P.   Wins.  461.  Asliton  v.  Asbton,  (e)  3  Bro.  Ch.  R.   110. 

3  P.  Wms.  386.  2  P.  Wms.  469.  (/)  Ib.  108. 

Ford  v.  Hunting.  2  Strang.  823. 

CC 


202  CUMULATIVE  LEGACIES.  [BOOK  in, 

strong  that  he  meant  the  legatee  should  have  it.  (a) 
If  the  testator,  after  such  bequest  of  stock,  sell  out 
part  and  die,  such  sale  shall  be  an  ademption  pro 
tanto.  (b) 

Legacies  may  be  also  cumulative.  They  are  con- 
tradistinguished from  such  as  are  merely  repeated. 
As  where  a  testator  has  twice  bequeathed  a  legacy 
to  the  same  person,  it  becomes  a  question  whether  the 
legatee  be  entitled  to  both  or  one,  and  on  this  point 
also  the  intention  of  the  testator  is  the  rule  of  con- 
struction, (c) 

On  this  head  there  are  three  classes  of  cases. 
1.  That  in  which  there  is  no  evidence  either  internal 
or  extrinsic  2.  That  in  which  there  is  external  evi- 
dence, and  3,  That  in  which  there  is  extrinsic  evi- 
dence. 

Of  the  first  class  there  are  four  instances. 

1.  Where  the  same    specific  thing  is  twice  be- 
queathed to  A  in  the  same  will,  or  in  the  will  and 
again  in   the  codicil;  in  that  case  he   can  claim   the 
benefit  only  of  one  legacy,  because  it  could  be  given 
no  more  than  once,  (d) 

2.  Where  the  like  quantity  is  bequeathed  to  him 
twice,  by  one  and  the  same  instrument,  there  also  he 
shall  be  entitled  to  one  legacy  only,  (e) 

3.  Where  the  bequest  to  him  is  of  unequal  quantities 
in  the  same  instrument,  the  one  is  not  merged  in  the 
other;  but  he  has  a  right  to  them  both.  (/) 

(a)  Partridg-e     v.    Partridge,    Ca.  (<)  1  Bro.  Ch.  Rep.  392.  Toll.  Ex. 

Tern.  Talb.  226.  336.  Masters  v.  Masters,  1  Pr. 

(6)  Ib.   Cuthbert   v.    Cuthbert.    4  Wms.  424.  Dewit  v.  Yeates.    10 

Yeates.  276.  John.  Rep  156. 

(c)Toll.  Ex.  334.  (/)  1  Bro.  Ch.  Rep.  392.  Coote  v. 

(d)  1  Bro.  Ch.  Rep.  392.  in  no-te,  10  Boyd,  2  Bro.  Cb.  Rep.  521. 

John.  R.  156.  Toll.  Ex.  336. 


UHAP.  iv.]  CUMULATIVE  LEGACIES.  203 

4.  And  lastly  where  the  bequest  to  him  is  of  equal 
or  unequal  quantities  by  different  instruments;  in  that 
case  also,  there  shall  be  an  accumulation,  (a) 

II.  There  are  likewise  cases  in  which  there  is  inter- 
nal evidence  of  the  testator's  intentions,  as  where  a  lat- 
ter codicil  appears  to  be  merely  a  copy  of  the  former, 
with  the  addition  of  a  single  legacy,  or  where  both 
legacies  are  given  for  the  same  cause;  they  shall  not 
be  accumulative,  whether  given  by  the  same  or  differ- 
ent instruments,  as  they  shall  be  where  one  is  given 
generally  and  the  other  for  an  express  purpose,  or 
where  one  reason  is  assigned  for  the  former,  and  ano- 
ther for  the  latter,  or  where  the  legacies  are  not  of 
the  same  nature,  as  where  an  annuity  and  a  sum  of 
money  is  given,  (b)  or  two  annuities  of  the  same 
amount,  the  one  payable  quarterly,  and  the  other 
half  yearly;  (c)  or  two  annuities  of  different  amounts, 
the  one  given  by  the  will  payable  out  of  real  estate, 
the  other  by  a  codicil  payable  out  of  personal  estate, 
(rf)  In  like  manner  it  may  be  collected  from  the  con- 
text, whether  the  testator  meant  a  duplication  or  a 
mere  repetition  of  a  first  bequest:  and  his  intention, 
has  been  inferred  from  very  slight  circumstances,  (e) 

III.  Extrinsic  evidence  is  always  admissible  on  this 
subject.  Whether  the  testator,  by  giving  two  lega- 
cies, did  or  did  not,  intend  the  legatee  to  take  both,  is 
a  question  of  presumption,  which  will  let  in  every 
species  of  proof.  Hence  if  the  testator  after  making 

(a)  1  Bro.  Ch.  Rep.  391  -  n.  1.  Mas-  Eden's  Rep.  239. 

ters  v.  Masters.  1  P.  Wins.  423.  (e)  Toll.  Ex.  336.  Duke  of  St.  Al- 

(6)  1  P,  Wms.  423.  ban's  v.  Beauclerk,  2  Atk.   640. 

(c)  Currie  v.  Pye,  17  Vez.jr.  462.  Ridges  v.  Morrison,  1    Bro.  Ch, 

(d)  Wright  v.  Lord    Cadogan,  2  Rep.  521. 


204  LEGACY  PAYMENT  OF  DEBTS.         [BOOK  HI. 

the  will  and  before  the  date  of  the  codicil,  had  an  in- 
crease of  fortune,  that  circumstance  has  been  held  to 
prove  that  he  intended  an  additional  bounty,  (a) 

Under  certain  circumstances,  a  legacy  is  regarded 
in  the  light  of  satisfaction  of  a  debt.  On  this  point 
also  the  intention  of  the  testator  is  the  criterion.  (6) 

It  is  a  general  rule  that  a  legacy  given  by  a  debt- 
or to  his  creditor,  which  is  equal  to  or  greater  than 
the  debt,  shall  be  considered  as  a  satisfaction  of  it.  (c) 

But  this  is  a  mere  rule  of  construction,  and  the 
courts  in  a  variety  of  instances  have  denied  the  ap- 
plication of  it,  where  they  have  been  able  to  collect 
from  the  will  circumstances  to  repel  the  presumption. 
(d)  As  where  it  contains  an  express  direction  for 
the  payment  of  debts,  (e)  or  if  the  legacy  be  less  than 
the  debt  it  has  been  held  not  to  go  in  discharge  nor 
even  diminution  of  it.  (/) 

A  legacy  shall  not  be  considered  a  satisfaction,  if  it 
be  conditional  or  depend  on  a  contingency,  for  it  shall 
not  be  supposed  that  the  testator  intended  an  uncer- 
tain recompense  in  satisfaction  of  a  certain  demand:  (g) 
nor  where  the  legacy  is  not  equally  beneficial  with  the 
debt  in  one  respect,  though  it  may  be  more  so  in 
another-,  as  where  the  legacy  is  for  a  greater  amount, 
but  the  payment  of  it  is  postponed  for  however  short 
a  period:  (A)  Nor  unless  it  be  equally  beneficial  in 

(a)  Toll.  Ex.  336.  Masters  v.   Mas-  410. 

ters,  1  P.  Wms.  424.  (/)   Cranmer's   case,    Salk.    508. 

(6)  C'ulhbert  v.    Cuthbert,  I   Salk.  Hawes  v.,  Warner,  2  Vern.  478. 

155.  2Foab.  332.  Eastwood  v.  Vinke,  2  P.   Wms. 

(c)lP.  Wms.  409.  n.    1.  Talbot  v.  616. 

Duke    of  Shrewsbury,   Free,    in  (g-)  2  Fonbl.    331.  Prec.  Ch.   394. 

Chan.  394.  Sefle  v.  Wood,  2  P.  2  Salk.  508. 

Wms.  132.  (A)  Pre.  Cha.  236. 2  Atk.  300. 1  Br- 

(d\  I  Pr.  Wms.  409.  n.  1.  Ch.  Rep.  129. 
(e)  Chancey's    case,   1  Pr.  Wms. 


CHAP,  iv.]         LEGACY  PAYMENT  OF  DEBTS.  205 

amount,  certainty  and  time  of  enjoyment,  with  the 
thing,  contracted  for:  (a)  Nor  if  the  debt  were  an 
open  or  running  account,  of  which  the  testator  could 
not  tell  on  which  side  the  balance'was;  (b)  Nor  if  the 
debt  were  contracted  after  the  making  of  the  will  in 
which  the  legacy  is  given,  (c) 

Parol  declarations  by  the  testator  may  be  given 
in  evidence  to  repel  the  presumption  of  the  satisfac- 
tion of  a  debt,  by  the  bequest  of  a  legacy  of  a  greater 
amount,  even  where  such  declarations  were  not  con- 
temporaneous with,  but  subsequent  to  the  making  of 
the  will;  and  although  the  expressions  in  the  will 
may  afford  an  inference  in  favour  of  the  presumption. 


But  in  all  cases  the  legacy  shall  be  construed  as  a 
satisfaction  in  case  there  be  a  deficiency  of  assets,  (c) 

Where  a  legacy  is  decreed  to  be  in  satisfaction  of  a 
debt,  the  court  always  give  interest  from  the  testator's 
death.  (/) 

Although  generally  a  devise  of  land  is  not  a  satis- 
faction or  part  performance  of  a  debt  or  agreement 
to  settle  money,  yet  if  the  contract  authorises  such  a 
mode  of  making  satisfaction,  it  will  be  so  decreed 
though  it  is  not  stated  in  the  will  to  be  in  satisfation. 
(g)  And  if  the  devisee  dispose  of  the  land  devised, 
though  by  the  will  which  cannot  pass  real  estate,  yet 
it  is  evidence  of  the  acceptance  of  the  land  in  satisfac- 
tion or  in  part  performance,  (h) 

(d)  Blandy  v.  Wedmore,  1  P-  Wms.  (e)  Toll.  Ex.  338. 

324,  409,  n.    1.  Toll.  Ex.  337.  2  (/)  3  Atk.  99. 

Fonb.  332,  n.  o.  (g)  Bryant  v.  Hunter,  et.  al.  C.  C. 
(6)  IP.  Wms.  299.  April,  1811.  Ms.  Rep.  Whart. 

(c)  2  Fonbl.  331-2,  2  Salk.  598.  Dig.  1.  611. 

(d)  Wallace  v.  Pomfret,   11  Vez.     (*) Ib.Ib.  612. 
Jr.  542. 


06  LEGACY  PAYMENT  OF  DEBTS.        [BOOK  m. 

A  testator  who  was  indebted  to  his  sons  A  and  B, 
in  a  sum  equal  to  about  fourteen  hundred  dollars,  be- 
queathed to  A  some  small  specific  legacies,  and  one- 
fourth  of  the  residue  of  his  estate,  after  certain  devi- 
ses and  legacies.  The  will  further  declared,  that 
"  whereas  my  son  B  is  indebted  to  me  in  sundry  sums 
advanced  for  his  benefit,  my  will  is  that  all  his  debts 
to  me  be  cancelled,  and  I  bequeath  to  him  the  sum 
of  five  hundred  dollars  and  no  more."  At  the  time 
of  the  testator's  death,  B  was  separately  indebted  to 
him  in  the  sum  of  ten  thousand  dollars  and  upwards, 
and  had  previously  received  from  the  testator  a  gift  of 
stock  to  the  value  of  six  thousand  dollars.  The  testa- 
tor left  real  and  personal  estate  to  the  amount  of  two 
hundred  and  fifty-five  thousand,  it  was  held  that  the 
bequest  was  not  a  satisfaction  of  the  debt  due  by  the 
testator  to  his  sons,  (a) 

On  the  other  hand  if  the  legacy  be  left  to  the  tes- 
tator's debtor  the  debt  shall  be  deducted  from  the  le- 
gacy, for  the  legatee's  demand  is  in  respect  of  the  tes- 
tator's assets  without  which  the  executor  is  not  liable, 
and  therefore  the  legatee  in  such  case  is  considered  to 
have  so  much  already  in  hand,  as  the  debt  amounts 
to,  and  consequently  to  be  satisfied  pro  tanto.  (b) 

A,  who  had  charge  of  the  affairs  of  B,  and  had 
some  accounts  with  her,  borrowed  one  hundred  and 
fifty  pounds:  B  died  after  making  a  will,  in  which  she 
bequeathed  to  A  two  hundred  pounds  in  real  specie, 
provided  he  brings  no  account  against  me  and  my  es- 

fo)  Byrne  et  al.  v.   Byrne  et  al.  (&)  2  P.  Wms.  128^ 

3  Sergt.  and  R.  54. 


OHAP.  iv.]         ABATEMENT  OF  LEGACIES.  207 

tate,  &c.  It  was  doubted  whether  a  bequest  operated 
as  a  release  of  the  bond,  (a) 

If  the  testator  bequeath  to  his  debtor  the  debt,  this 
being  no  more  than  a  release  by  will,  operates  as  a 
legacy,  and  is  assets  subject  to  the  payment  of  the  tes- 
tator's debts,  (b) 

In  case  the  assets  be  sufficient  to  answer  the  debts 
and  specific  legacies,  but  not  the  general  legacies, 
they  are  subject  to  abatement  in  equal  proportions j 
but  in  such  case,  specific  legacies  do  not  abate,  (c) 

And  the  act  of  assembly  of  March  1772,  s.  2.  (d) 
in  affirmance  of  the  common  law,  declares,  that  where 
there  are  assets  in  the  hands  of  any  executors  or  ad- 
ministrators with  the  will  annexed  to  discharge  all 
the  debts  of  the  testator,  with  an  overplus  not  suffi- 
cient to  discharge  all  the  legacies  which  may  be 
given,  an  abatement  shall  be  made  in  proportion  to  the 
legacies,  unless  it  be  otherwise  provided  by  the  will. 

A  sum  of  money  bequeathed  by  the  testator,  in 
satisfaction  or  recompense  of  an  injury  done  by  him, 
does  not  abate  more  than  a  specific  legacy,  (e)  But 
a  legacy  though  devised  to  be  paid  in  the  first  place, 
shall  abate,  if  the  fund  be  insufficient  for  the  legacies, 
(/)  unless  perhaps  it  be  a  provision  for  the  wife,  (g) 
A  personal  annuity  being  a  legacy  of  quantity  is  sub- 
ject to  abatement,  (h) 

If  A  devise  specific  and  pecuniary  legacies,  and 
direct  that  such  pecuniary  legacies,  shall  come  out  of 

(a)  Massey  et  al.   v.   Learning,  4     (e)  2  Fonb.  377. 

Dall   123.  (/)'b.    378.    Brown*.    Allen,    I 

(b)  Ryder  v.  Wager,  2  P.  Wm.  332.         Vern.  3 1 . 

(c)2   Fonbl.  374.     2    Black,    513-     (§•)  2  Vez.  417.  Lewin  v  Lewin. 

Clifford  ».  Burt,  1  P.  Wins.  679-  (A)  3  Atk.  693.  2  Vez.  417.  Sed. 
(d)  1  Sin.  L.  383.  Vide  1  Vez.  133. 


£08  ABATEMENT  OF  LEGACIES.          [BOOK  in. 

his  personal  estate,  if  there  be  no  other  personal  estate 
than  the  specific  legacies,  they  must  be  intended  to  be 
subject  to  those  that  are  pecuniary,  otherwise  the 
bequest  to  the  pecuniary  legatees,  would  be  alto- 
gether nugatory,  (a) 

In  case  of  a  deficiency  of  general  assets,  that  is  to 
say,  of  assets  to  pay  debts,  specific  legacies,  although 
not  liable  to  abate  with  the  general  legatees,  must 
abate  in  proportion  among  themselves,  (b) 

Where  the  vendor  of  an  estate  would  have  ab- 
sorbed the  personal  assets  in  payment  of  his  purchase 
money,  which  was  directed  by  the  will  to  be  paid  by 
the  executor,  a  rateable  contribution  was  decreed, 
as  between  the  devisee  of  the  estate  and  the  legatees 
and  annuitant,  under  the  will,  (c) 

Where  specific  legacies  are  carved  out  of  a  specific 
chattel,  and  it  proves  insufficient,  such  legacies  must 
abate  proportionately  among  themselves."  (d) 

As  the  specific  legatee  does  not  contribute,  except 
in  cases  of  deficiency,  for  the  payment  of  debts  or 
specific  legacies,  so,  he  is  not  entitled  to  contribution -3 
and  if  his  legacy  be  lost,  mislaid,  or  destroyed,  he 
must  abide  by  his  misfortune,  (e) 

Where  a  legacy  was  bequeathed  under  the  follow- 
ing restriction,  "  It  is  my  will  and  desire,  that  if  the 
personal  estate  and  the  produce  arising  from  the  real 
estate,  of  which  I  shall  die  seized  and  possessed,  shall 
not  be  sufficient  to  answer  the  several  annuities  and 
legacies,  they  shall  not  abate  in  proportion,  but  the 

(a)  Free.  Chan.  390.  1  P.  Wm.  265,  (c)  Headly    v.    Redhead.    Cooper. 

422,  462, 675.  2  P.  Wms.  25,  296.         Rep.  50. 

(6)  2  Fonb.  377.  note  q.  2  P.  Wins,  (d]  Vid.  2  Vez.  563. 

382.  1  P.  Wms.  403.  4  Mass.  T.  (e)  Hinton  v.  Pink,  2  P.  Wras.  540. 

R.  63,2. 


CHAP,  iv.]        ABATEMENT  OF  LEGACIES.  209 

whole  of  such  deficiency,  if  any  there  be,  shall  be  de- 
ducted out  of  the  said  sum  of  fifteen  hundred  pounds, 
by  me  herein  before  bequeathed,  &c."  If  the  estate  of 
the  testator  is  sufficient  at  his  death,  but  becomes  in- 
sufficient afterwards,  on  account  of  the  insolvency  of 
the  executor,  the  legacy  restrictively  bequeathed 
must  be  applied  to  make  up  the  deficiency,  the  words 
"the  personal  and  real  estate  of  which  I  shall  die 
possessed,"  being  equipollent  to  the  words  "  all  my 
real  and  personal  estate,"  and  therefore  fixing  no 
time  when  the  insufficiency  is  to  be  tested,  that  time 
is  when  the  will  is  to  be  carried  into  execution  by 
an  application  of  the  funds  to  the  object,  (a) 

And  when  a  specific  pecuniary  legacy  is  given  to 
the  same  person  to  whom  the  residuum  is  given,  and 
on  the  same  terms,  it  assumes  the  character  of  a  re- 
siduary bequest,  and  the  testator  cannot  be  under- 
stood as  having  intended  to  give  it  any  preference 
over  the  residuum,  (b) 

The  legatees  are  not  only  bound  to  abate,  but  if 
they  have  been  paid  their  legacies,  they  are  bound 
to  refund  them,  or  a  rateable  part  of  them,  in  all 
cases  of  a  deficiency  of  assets  for  the  payment  of  debts. 

By  the  above  recited  act  of  1772,  (c)  s.  4,  it  is  pro- 
vided, that  no  suit  shall  be  maintained  for  a  legacy 
until  reasonable  demand  of  the  executor  or  adminis- 
trator with  the  will  annexed,  and  an  offer  made  of 
two  sufficient  sureties,  who  shall  become  bound  in 
double  the  sum  of  the  legacy  given,  where  the  lega- 
cy is  ascertained  by  the  will,  and  where  not,  in  dour 

(a)  Silsby  et  al.  v.  Young.  3  Cranch.     (6)  Ib.         • 
264.  (c)  1  Sm.  L.  3.83. 


210  REFUNDING  OF  LEGACIES.  [BOOK  HI. 

ble  such  sum  as  the  legatee  shall  claim,  with  condi- 
tion, that  if  any  part  or  the  whole  thereof,  shall  at 
any  time  after  be  wanting  to  discharge  any  debt  or 
legacies,  which  there  are  not  other  assets  to  pay,  that 
then  the  legatee  will  return  his  legacy  or  so  much 
thereof  as  shall  be  necessary  for  the  payment  of  the 
said  debt  or  proportional  part  of  the  said  legacies. 
And  if  the  executor  or  administrator,  will  not  accept 
of  such  bond  the  legatee  must  file  it  with  the  clerk 
of  the  court,  before  obtaining  process  against  the  exe- 
cutor or  administrator. 

But  if  the  deficiency  be  known  at  the  time  of  pay- 
ment, the  payment  voluntary,  and  no  bond  taken,  the 
executor  cannot  maintain  suit  against  a  legatee  for  a 
proportionate  return,  (a)  If  the  assets  were  origK" 
nally  deficient,  and  the  executor  pay  one  of  the  lega- 
tees either  voluntarily  or  by  compulsion,  the  other  le- 
gatees may  make  him  refund  in  proportion.  But  if 
the  executor  had  at  first  enough  to  pay  all  the  lega- 
cies, and  by  his  subsequent  waste,  the  assets  became 
deficient,  such  legatee  shall  not  be  compelled  to  re- 
fund, but  shall  retain  the  benefit  of  his  legal  dili- 
gence, in  preference  to  the  other  legatees  who  ne- 
glected to  institute  their  suit  in  time.  (6) 

Nor  is  a  legatee  bound  to  refund' at  the  suit  of  the 
executor,  unless  the  payment  by  him  were  compul- 
sory; (c)  or  unless  the  deficiency  were  created  by 
debts  which  did  not  appear  till  after  the  payment  of 
the  legacy,  (d)    In  either  of  which  cases,  the  execu- 
te) Toll.   Ex.  341.  2  Vez.  194.  2         Wms.  446.  Toll.  Ex.  341. 
Vern.  205.    1  P.  Wms.  495.  n.  ].     (c/  2  Vern.  205. 
•2  P.  Wms.  44ff.  (rf)   ]  Ch.  ca.  136. 

(6)    Edwards    v.    "Freeman.    2  P. 


CHAP,  iv.]   DISTRIBUTION  OF  PERSONAL  ESTATE. 

tor  as  well  as  creditor,  may  compel  the  legatee  to 
refund  the  legacy;  for  an  executor  who  pays  a  debt 
out  of  his  own  purse,  stands  in  the  place  of  a  credi- 
tor, and  has  the  same  equity  as  against  such  legatee. 


SECTION  VI. 

Of  the  Distribution  of  Personal  Estate. 

When  the  executor  has  paid  all  the  debts  and  all 
the  legacies  abovementioned,  he  must  in  the  last 
place,  pay  over  the  surplus  or  residuum  to  the  resi- 
duary legatee;  (b)  or  if  he  be  dead,  to  his  represen- 
tative. (c) 

If  the  residuary  estate  be  devised  to  jointenants, 
and  one  die  in  the  life  time  of  the  testator,  or  after 
the  testator  and  before  severance  of  the  jointenancy, 
it  will  survive  to  the  others,  (rf)  But  if  it  be  given 
to  A,  B,  C,  as  tenants  in  common,  on  the  death  of  one 
of  them  in  the  life  time  of  the  testator,  his  share  shall 
not  go  to  the  survivors,  but  shall  devolve  on  the  tes- 
tator's next  of  kin,  according  to  the  statute  of  dis- 
tribution, as  so  much  of  the  estate  remaining  undis- 
posed of  by  will,  (e) 

So  if  a  third  of  the  residuum  be  devised  to  each  of 
three  persons,  and  one  of  them  die  in  the  testator's 
life  time;  (f)  or  if  the  devise  be  revoked  as  to  one 
of  such  residuary  legatees,  the  consequence  shall  be 
the  same. 


(a)  4  Bac.  ab.  428.  Toll.  Ex.  342.  (e)  Toll.  Ex.  343.  Bag-well  v.  Dry, 

ib)  3  Bl.  Com.  514.  4  Bac.  ab.  428.  1    P.  VVms.  700.  Crag  v.  Willis, 

(c)  Carth  52.  Brown  v.  Farndell.  2  P.  Wms.  529. 

(d)  Webster  v.  Webster.  2  P.  Wms.  (/)  2  P.  Wms.  488.  1  P.  Wms.  700. 
347.  (g>)  6  Bro.  P.  C.  1  Toll.  Ex.  343. 


DISTRIBUTION  OF  PERSONAL  ESTATE.  [BOOK  in. 

If  there  be  no  residue,  the  residuary  legatee  can 
claim  nothing,  (a)  and  in  no  case  shall  the  other  lega- 
tees abate,  unless  there  have  been  a  devastavit  by 
the  executor,  when  he  shall  come  in  pari  passu  with 
the  other  legatees,  (b) 

If  there  be  no  residuary  legatee,  the  residuum 
shall  go  to  the  next  of  kin  of  the  testator.  It  was 
once  held,  but  it  seems  erroneously,  that  the  execu- 
tor here  as  in  England,  took  the  undisposed  residue 
beneficially,  unless  from  the  will  or  circumstances 
he  appeared  to  be  a  trustee,  (c)  But  it  is  now  the 
settled  law  of  the  state,  that  the  executor  is  the  trus- 
tee for  the  next  of  kin.  (d)  The  executor  in  all 
cases,  except  where  he  is  a  debtor  of  the  testator,  is 
looked  upon  by  the  law  of  Pennsylvania  in  the  same 
light  as  an  administrator,  as  a  mere  trustee  and  agent 
for  the  creditors,  legatees,  and  next  of  kin,  who  is 
entitled  to  compensation  for  the  services  which  he 
renders,  (e)  It  is  of  course,  the  duty  of  the  adminis- 
trator to  make  distribution  of  the  residuum  among  the 
next  of  kin,  after  payment  of  the  debts  of  the  dece- 
dent. 

If  there  be  minor  children,  it  becomes  the  duty  of 
the  executor  or  administrator,  imposed  by  the  act  of 
seventeenth  March,  1713,  s.  4,  to  place  the  money 
of  such  minors  out  upon  interest  under  the  direction 
of  the  Orphan's  Court,  upon  such  security  as  the 
court  shall  allow;  and  if  such  security  taken  bona  fide 

(a)  1  Bro.  ch.  Rep.  478.  580,  584,  575. 

(6)  1  P.  Wms.  305,  306.  note  1  and  (d)  Wilson  v.  Wilson,  3  Binn.  557. 

2.  Act  of  Ass.  7  Ap.  1807.  4  Sm.  L. 

(c)  Boudinot  v.  Bradford,  2  Dall.  402. 

268.  Grasses  v.  Eckart,  5  Binn.  (e)  Wilson  v.  Wilson,  3  Binn.  50Q-. 


CHAP.  IT;]  DISTRIBUTION  OF  PERSONAL  ESTATE.  213 

and  without  fraud  shall  prove  insufficient,  the  loss 
shall  be  the  minor's;  but  if  no  person  can  be  found 
willing  to  take  the  money  at  interest,  on  such  secu- 
rity, the  executors  or  administrators  shall  be  respon- 
sible for*the  principal  only,  until  it  can  be  so  put  out 
at  interest,  (a) 

The  day  of  payment  of  the  money  so  to  be  put  out 
at  interest,  at  any  one  time  shall  not  exceed  twelve 
months  from  the  date  of  the  obligation  or  other  secu- 
rity given  for  the  same,  and  so  toties  quoties  as  the 
money  shall  come  to  the  hands  of  the  executor  or 
administrator.  (6) 

And  section  sixth  of  the  same  act  provides  that  the 
executor  or  administrator  shall  not  be  liable  to  pay 
interest,  but  for  the  surplusage  of  the  decedent's  es- 
tate in  their  hands,  when  the  accounts  of  their  admin- 
istration are,  or  ought  to  be  settled,  (c) 

The  time  at  which  such  accounts  ought  to  be  set- 
tled is  one  year  after  the  granting  of  the  letters  of 
administration,  or  letters  testamentary.  This  time  is 
fixed  for  the  executor  by  his  oath  at  the  time  of  pro- 
bate, and  for  the  administrator  by  the  first  Sec.  of  the 
intestate  Act  of  1794,  and  by  the  oath  he  takes  on 
receiving  the  letters  of  administration.  If  after  that 
time  the  executor  or  administrator  suffer  money  in 
their  hands  to  remain  unemployed,  they  are  respon- 
sible for  interest:  much  mbre  so,  if  they  use  the 
money  for  their  own  purposes,  (d)  And  the  law  will 
presume  that  he  has  so  used  it,  unless  he  satisfacto- 
rily show  the  contrary,  (e)  But  he  cannot  be  required 

(a)  1  Sm.  L.  81.  (d)  Fox.  v.  VVjlcocks,  1  Binn.  Rep. 

(6)  Ibid.  194. 

(c)  Ibjd  (<•)  Ibijl. 


214  ADVANCEMENT.  [BOOK  in. 

to  render  an  account  of  his  disposition  of  the  money 
upon  oath,  (a) 

If  the  executor  or  administrator  put  the  money  to 
interest  on  securities  unsanctioned  by  the  court, 
which  fail,  he  is  clearly  responsible  for  its  loss.  He 
can  find  his  safety,  only  in  the  approbation  of  the 
court,  as  required  by  the  act. 

If  an  administrator  incur  interest  and  costs,  by  ne- 
glecting or  refusing  to  pay  a  just  debt,  having  assets 
in  his  hands,  he  will  be  charged  interest  thereon;  or, 
in  other  words,  he  will  not  be  permitted  to  charge 
the  interest  and  costs  against  the  estate.  (6) 

SECTION  VII. 

Of  Advancement. 

Before  making  distribution,  it  is  proper  for  the  ad- 
ministrator to  inquire  whether  any  child  of  the  in- 
testate have  been  advanced  by  the  parent.  For  by 
the  ninth  section  of  the  act  of  1 794,  if  any  child  have 
any  estate  by  the  settlement  of  the  intestate,  or  be 
advanced  by  the  intestate  in  his  life  time,  by  portion 
equal  to  the  share  which  shall  be  divided  and  allot- 
ed  to  the  other  children,  and  other  descendants, 
whether  by  lands  or  personal  estate,  such  person 
shall  have  no  share  of  the  estate,  of  which  the  intes- 
tate died  seized  or  possessed:  and,  in  case  a  child 
have  any  estate  by  settlement  from,  or  have  been  ad- 
vanced by  the  intestate  in  his  life  time,  whether  the 
said  portion  or  advancement  be  in  real  or  personal 
property,  but  not  equal  to  the  share  which  will  be  due 
to  the  other  children  or  descendants,  then  so  much 

(a)  Fox  v.  Wilcocks.  1  Binn.  Rep.     (6)   Callaghan  v.  Hall,  1  Serg.  & 
194.  .    R.  241. 


«HAP.  iv.]  ADVANCAMBNT. 

of  the  surplusage  of  the  estate  of  the  intestate  shall 
be  given  to  such  child,  as  will  make  the  estate  of  all 
the  said  children  or  descendants  to  be  equal:  except- 
ing, that  where  the  issue  taking,  shall  not  be  of  equal 
degree  of  kindred  to  the  intestate,  the  several  de- 
scendants taking  by  representation,  to  inherit  the  one 
person  solely,  and  several  persons,  as  tenants  in  com- 
mon in  equal  parts,  such  share  only  as  would  have 
descended  or  been  distributed  to  his,  her,  or  their 
parent  or  ancestor,  if  such  parent  or  ancestor  had 
been  then  living,  (a) 

The  statute  does  not  devest  the  child  of  any  pro- 
perty which  has  thus  been  given  to  him,  however 
unequal  it  may  have  been,  or  how  much  soever  it 
may  exceed  the  residue;  he  may,  if  he  pleases  keep 
it  all:  if  he  be  not  contented,  but  would  have  more, 
then  he  must  bring  what  he  has  before  received,  as 
the  law  expresses  it,  into  hotchpot.  (6) 

In  England,  the  provision  in  the  statute,  applies 
only  to  the  case  of  actual  intestacy;  and  where  there 
is  an  executor  and  consequently  a  complete  will, 
though  the  executor  may  be  declared  a  trustee  for 
the  next  of  kin,  they  take  as  if  the  residue  had  been 
actually  given  to  them,  and  a  child  advanced  by  a 
father  in  his  life  time,  cannot  be  called  upon  to  bring 
her  share  into  hotchpot,  (c) 

And  this  would  seem  to  be  the  most  equitable 
course  here.  For  the  testamentary  distribution  of  his 
property  by  the  decedent  is  either  equal  or  unequal. 
If  it  be  the  former,  an  equal  distribution  of  the  effects 

(a)  3  Sm.  L.  147.«  (c)  Toll.  Ex.  376.  14  Vez.  Jr.  324, 

(6)  Toll.  Ex.  37R.  Walton  v.  Walton. 


ADVANCEMENT.  [BOOK.  in. 

of  which  he  died  intestate  would  be  consonant  with 
the  spirit  of  the  act;  if  the  latter,  it  might  frequently 
happen  that  the  child  who  had  received  from  a  parent, 
the  greater  portion  during  his  life,  would  receive 
under  the  provisions  of  the  will  much  the  smallest 
portion  of  the  parent's  estate,  and  yet  would  be  depri- 
ved of  participating  in  any  property,  undisposed  of 
by  the  will,  without  bringing  his  share  into  hotchpot, 
which  could  not  be  required  of  those  who  had  received 
by  the  will,  a  greater  share. 

Besides  there  is  a  strong  presumption,  that,  the  de- 
cedent sanctioned  his  former  gift,  since  he  has  not  di- 
rected it  to  be  brought  into  account,  when  making  an 
ultimate  disposition  of  his  property  among  his  chil- 
dren. 

But  the  letter  of  the  act  of  1794,  sec.  3,  is  opposed 
to  this  construction;  as  the  same  rules  for  distribution 
are  given  for  a  partial  as  for  general  intestacy.  Nay, 
from  the  terms  of  the  law,  the  legislature  seem  to 
have  contemplated  specially  the  case  of  partial  intes- 
tacy. The  words  being,  "  That  the  remaining  part  of 
any  lands,  tenements  and  hereditaments  and  person- 
al estate,  of  any  person  deceased,  not  sold  or  disposed 
of  by  will,  nor  otherwise  limited  by  marriage  settle- 
ment, shall  be  divided  and  be  enjoyed,"  &c.  And 
therefore  the  arguments,  drawn  from  expediency  and 
apparent  justice,  must  perhaps  give  way  to  the  clear 
expression  of  the  law. 

To  determine  what  shall  be  an  advancement  we 
must  resort  to  the  decisions  under  the  English  statute; 
upon  this  subject. 

A  provision  made  for  a  child  by  settlement,  wheth- 


CHAP,  iv.]  ADVANCEMENT.  217 

er  voluntary  or  for  a  good  consideration,  as  marriage, 
(a)  or  blood;  a  charge  upon  land;  (6)  the  use  of  fur- 
niture for  life;  (c)  money;  (d)  a  portion  payable  in  fu- 
ture; (c)  a  portion  that  is  contingen  ,  if  the  contingen- 
cy is  to  happen  within  a  reasonable  time,  (/)  are  ad- 
vancements pro  tanto. 

But  small  inconsiderable  sums  of  money,  trivial 
presents,  as  a  watch  or  wedding  clothes,  (g)  money 
expended  by  the  father  for  the  child's  maintenance, 
for  putting  him  an  apprentice,  or  for  his  education, 
shall  not  be  deemed  an  advancement,  (h)  Nor  a  pro- 
vision made  by  the  father,  by  his  will  for  his  child,  in 
a  case  where  a  testator  dies  intestate  as  to  part  of  his 
estate,  (i)  Still  less  shall  property  given  or  bequeath- 
ed to  a  child  by  any  other  person  be  considered  as  an 
advancement,  (k) 

A  child  shall  bring  in  his  advancement  only  among 
the  other  children,  but  no  benefit  shall  accrue  to  the 
widow.  (I)  If  a  child  advanced  die  in  his  father's 
life  time  leaving  children,  they  shall  not  receive  his 
share  unless  they  bring  in  his  advancement,  (m) 

An  advancement  in  lands  or  personal  estate,  is  to 
be  estimated  according  to  its  value,  at  the  time  of  the 
advancement  and  not  at  the  time  of  the  father's  death. 
(») 

It   is  only  in  case  of  intestacy,  that  a  child  ad- 

(a)  Sampson  v.  Sampson,  1  Sergt.         Collier,  3  Atk.  528. 

&  R.  333.  2   P.  Wms.  440,  444.  (h)  2  P.  Wms.  449. 

(6)  I  old.  441.  (i)  Ib.  440. 

(c)  Comm.    Dijf.  Adm.  H.  Fitzh.  (k)  Bac.  ab.  tit.  admin.  Swinb.  p.  3: 

'285.  s.  18. 

(</)2  Vern.  638.  (/)  Free.  Ch.  182,  184. 

(e)  2  P.  Wms.  442-6-9.  (m)  2  P.  Wins.  560. 

(/)  Ib.  Ib.  (n)  Oyster  et  al.  v.  Oyster,   1  Serf t 
(g)  3  P.  Wms.  317,  n.  o.  Elliot  v.         &  R.  443. 

E  e 


' 


218  ADVANCEMENT.  [BOOK  in. 

vanced  by  a  parent  is  entitled  to  an  equal  distribution 
with  the  other  children  on  throwing  his  share  into  the 
common  stock.  For  where  A  devised  all  his  real 
estate  to  B;  his  heirs,  executors,  administrators 
and  assigns,  paying  a  certain  legacy  to  her  son  C, 
and  declared  in  her  will  that  she  left  nothing  to  her 
son  D,  and  B  died  before  the  testatrix,  leaving  child- 
ren, it  was  held  that  the  estate  descended  to  the  child- 
ren of  B,  who  took  it  subject  to  the  payment  of  the 
legacy  to  C,  and  that  neither  D  nor  C,  supposing  the 
devise  to  have  lapsed,  which  the  court  considered 
doubtful  from  a  circumstance  in  the  will,  could  claim 
a  distributive  share,  (a) 

The  administrator  may  make  distribution,  with  or 
without  the  aid  of  the  Orphan's  Court. 

In  the  first  case  he  settles  his  account  with  the 
register,  has  it  passed  to  the  Orphan's  Court  for  con- 
firmation and  allowance,  and  prays  the  court  to  make 
a  decree  pursuant  to  the  authority  given,  by  the  first 
section  of  the  act  of  1794,  which  directs  the  court, 
upon  hearing  and  due  consideration  of  such  account, 
"  to  order  and  make  just  and  equal  distribution  of 
what  remaineth  clear,  after  all  debts  and  funeral,  and 
just  expenses  of  every  sort,  first  allowed  and  deducted, 
amongst  the  wife  and  children,  or  children's  children, 
if  any  such  be,  or  otherwise  to  the  next  of  kindred  to 
the  person  deceased,  in  equal  degree,  or  legally  re- 
presenting their  stocks,  according  to  the  rules  and 
limitations,  given  by  that  act,  and  to  compel  the  ad- 
ministrators to  observe  and  pay  the  same  by  the  due 
course  of  the  laws  of  the  commonwealth,  saving  to 

fa)  Newel's  case,  1  Browne's  Rep.  311. 


OHAP.  v.]  ADVANCEMENT.  219 

every  person  considering  himself  aggrieved  his  right 
of  appeal,  (a) 

If  the  administrator  make  distribution  without  a 
decree  of  the  court,  he  may  require  a  bond,  by  virtue 
of  the  fifteenth  section  of  the  said  act,  (6)  of  each  dis- 
tributee, conditioned,  that  if  any  debt  truly  owing  by 
the  intestate  shall  be  afterwards  sued  and  recovered, 
or  otherwise  be  duly  made  to  appear,  that  he  will 
refund  and  pay  to  the  administrator  his  rateable  pro- 
portion of  such  debt,  and  costs  and  charges  by  reason 
thereof  to  enable  the  administrator  to  pay  and  satisfy 
such  debt,  discovered  after  distribution  made. 


CHAPTER  V. 

OF  THE  POWER  OF  THE  EXECUTOR    AND  ADMINISTRATOR 
OVER  THE  REAL  ESTATE  OF  THE  DECEDENT. 

SECTION    I. 

In  what  cases  they  may  sell  the  real  estate  of  the  dece- 
dent. 

The  representatives  of  a  decedent,  that  is  to  say, 
his  executors  or  administrators,  as  the  case  may  be, 
have  power  to  sell  his  lands  in  the  following  cases: 

1.  Where  they  are  devised  to  be  sold. 

2.  Where  the  decedent  is  intestate  and  his  lands 
are  refused  by  those  entitled  to  them,  under  the  stat- 
utes of  distribution,  (c) 

3.  Where  the  intestate  has  not  left  sufficient  per- 
sonal estate  to  pay  his  debts  and  maintain  his  children 

(a)  3  Sm.  L.  144.  vide  Appendix  No.  22.         (r)  4  3m.  L.  184,  401. 
(6)  Ib.  149. 


SALE  OF  REAL  ESTATti.  [BOOK  in. 

until  the  eldest  of  them  attain  the  age  of  twenty-one 
years,  or  to  put  them  out  apprentices,  and  to  teach 
them  to  read  and  write,  (a) 

4.  Where  on  a  final  settlement  of  any  administra- 
tion account  of  the  Orphan's  Court,  there  appears  not 
to  be  sufficient  assets  to  pay  and  satisfy  the  balance 
appearing  to  be  due  and  owing  from  the  estate  of 
the  deceased.  (6) 

In  the  first  case  it  is  obvious  that  the  executor  or 
those  who  shall  represent  him  only,  have  the  power 
to  sell:  In  the  second  and  third  the  administrator  sells, 
and  in  the  fourth,  the  sale  may  be  either  by  the  ad- 
ministrator or  by  the  executor. 

SECTION  II. 

Of  Estates  Devised  to  be  Sold. 

I.  There  is  this  distinction  between  the  powers  of 
the  executor  and  administrator  over  the  real  estate  of 
the  decedent,  that  the  latter  has  no  right,  but  that 
which  arises  from  the  express  direction  of  the  law; 
whilst  the  former  has  such,  as  the  testator  shall  give 
him,  in  addition  to  that  which  the  law  confers. 

Real  estates  are  most  generally  devised  to  execu- 
tors, to  be  sold  for  the  payment  of  debts:  sometimes 
they  are  devised  to  be  sold  simply,  without  any  ap- 
pointment of  persons  to  make  the  sale;  and  some- 
times they  are  devised  to  be  sold  by  executors  with- 
out any  estate  being  vested  in  any  person  for  that 
purpose.  Great  inconveniences  being  sustained  in 
such  cases,  from  the  want  of  power  in  the  executors 
to  bring  actions  for  the  recovery  of  possession,  and 

(a)  3  Sin.  L.  150.  (6)  5  Sm.  L. 


CHAP,  v.]  SALE  OF  REAL  ESTATE.  221 

against  trespassers;  it  was  enacted  by  the  fourth  sec- 
tion of  the  act  of  thirty-first  March,  1792,  (a)  that, 
when  by  the  last  will  and  testament  of  a  decedent, 
a  naked  authority  only  to  sell  lands,  tenements,  or 
hereditaments  shall  be  given  to  executors,  they  shall 
take  and  hold  the  same  interest  in  such  lands,  tene- 
ments, or  hereditaments,  and  have  the  same  power 
and  authority,  as  if  such  lands,  &c.,  were  devised  to 
them  to  be  sold;  reserving  to  the  testator,  the  right 
to  direct  otherwise. 

And  by  the  act  of  twelfth  March,  1800,  Sec.  1.  (6) 
in  all  cases  wherein  testators  have  devised,  or  may 
hereafter  devise  their  real  estates  or  any  part  there- 
of, to  their  executors  to  be  sold,  or  have  authorized 
and  directed,  or  may  hereafter  direct  such  real  es- 
tates to  be  sold,  without  naming  or  declaring  who 
shall  sell  the  same;  if  one  or  more  of  such  executors, 
is,  or  are  since  dead,  or  shall  hereafter  die,  it  shall 
and  may  be  lawful  for  the  surviving  executor  or  exe- 
cutors, to  bring  actions  for  the  recovery  of  possession 
thereof,  and  against  trespassers  thereon;  to  sell  and 
convey  such  real  estates,  and  to  manage  the  same  for 
the  benefit  of  the  persons  interested  therein,  as  fully 
and  completely,  as  he,  she,  or  they,  together  with 
his,  her,  or  their  co-executor  or  co-execntors  would 
be  empowered  to  do,  if  he,  she,  or  they  were  living. 

And  by  section  2,  if  such  devises  have  been  made, 
and  such  authority  and  direction  given,  if  one  or  more 
of  such  executors  hath  or  have  refused,  or  shall  here- 
after refuse,  or  hath,  or  have  renounced,  it  shall,  and 

(a)  3  Sm.  L.  67.  (6)  3  Sm.  L.  433. 


222  SALE  OF  REAL  ESTATE.  [BOOK  m, 

may  be  lawful  for  the  acting  executor  or  executors, 
to  sell  and  convey  such  real  estates  and  otherwise 
act  in  respect  to  the  same,  as  fully  and  completely, 
as  he,  she,  or  they,  together  with  such  refusing  or 
'renouncing  executor  or  executors  would  be  em- 
powered to  do,  if  he,  she,  or  they,  had  not  refused  or 
renounced. 

And  by  the  third  section,  where  such  devises  are 
made,  or  authorities  and  directions  given,  and  the  exe- 
cutors die,  refuse  or  renounce,  and  letters  of  admi- 
nistration with  the  will  annexed  have  been  or  shall 
be  granted,  it  shall  be  lawful  for  the  administrators, 
to  sell  and  convey  the  real  estate  and  otherwise  act 
respecting  the  same,  as  fully  and  as  completely  as 
such  deceased,  refusing  or  renouncing  executor  could 
have  done,  if  living,  or  had  accepted  the  execution 
of  the  will. 

And  by  sectiori  fourth,  where  such  devisees  are 
made  or  shall  be  made,  or  authorities  or  directions 
given,  and  the  executor,  or  executors  shall  be  dis- 
missed, or  otherwise  discharged;  the  executor  or  exe- 
cutors remaining,  shall  have  like  power  to  sell  and 
execute  the  said  trusts  and  authorities,  as  fully  and 
amply,  as  if  all  the  executors  named  had  joined  there- 
in: or  if  all  the  executors  have  been  or  hereafter 
shall  be  dismissed,  or  the  letters  testamentary  have 
been  or  shall  be  in  any  case  vacated,  and  new  letters 
awarded,  it  shall  and  may  be  lawful  for  the  adminis- 
trators with  the  will  annexed,  or  the  administrator 
de  bonis  now,  or  other  person  or  persons  to  whom  let- 
ters of  administration  shall  issue,  to  sell  and  to  exe- 
cute the  said  powers  and  authorities,  mentioned  and 


CHAP,  v.]  SALE  OF  REAL  ESTATE.  223 

contained  in  any  last  will  and  testament,  as  fully,  as 
if  the  executors  named  had  joined  therein. 

Prior  to  the  passage  of  the  act  of  1800,  it  had  been 
decided,  that  where  lands  were  devised  to  be  sold, 
but  no  person  was  appointed  to  make  the  sale,  the 
surviving  executor  might  sell,  (a)  And  where  the 
testator  appointed  A,  B,  and  C,  his  executors,  and 
gave  them  power  to  sell  his  land  by  the  following 
clause:  "  The  executors  namely  A,  B,  and  C,  shall 
be  empowered  to  sell  my  land,  &c ,  and  to  give  a 
good  right.  When  my  debts  are  paid  if  any  thing 
should  remain,  my  wife  shall  keep,  &c."  Two  of  the 
executors  refusing  to  act,  it  was  held,  that  the  third 
had  power  to  sell.  The  will  was  made  eleventh 
Pecember,  1775.  Two  of  the  executors  renounced 
twenty -sixth  December,  1775,  and  on  the  fifteenth 
May,  1781,  the  acting  executor  sold  the  lands.  (6) 

But  prior  to  this  act,  when  power  had  been  given 
to  the  executors  to  sell  and  they  renounced,  adminis- 
trators cum  testamento  annexo  could  not  sell,  though 
for  the  payment  of  debts,  (c) 

But  where  a  power  was  given  to  A,  his  executors 
and  administrators  to  sell,  it  might  be  executed  by  the 
executors  of  A.  (d) 

And  though  an  executor  formally  renounce  the  ad- 
ministration of  a  will  he  may  nevertheless  execute  a 
power  given  by  the  will  to  sell  lands,  (e) 

SECTION  III. 

II.  Of  the  authority  of  the  administrator  to  sell  the 

(a)  Lloyd's  less.  v.  Taylor,  2  Dall.  (d)  Smith  v.  Folwell,  1  Binn.  45(5. 

223.  S.  C.  1  Yeates  422.  '    Toll.  69. 

(6)  Zebach  v.  Smith,  3  Binn.  69.  (c)  Lessee  of  Moody  v.  Fultner,  Sup. 

(c)  Moody  r.  Vandyke  etal.  4  Binn.  C.  1.  June,  1814.  Whart.  Dig;. 

31.  279. 


224  SALE  OF  REAL  ESTATE.  [BOOK  in. 

lands  of  his  decedent,  after  refusal  to  accept  by  the 
parties  in  distribution,  we  shall  treat  at  large  under 
the  head  of  descents. 

SECTION  IV. 

Of  sales  for  the  payment  of  debts  and  the  maintenance 

of  Children. 

III.  It  is  provided  by  the  nineteenth  section  of  the 
intestate  act  of  1794,  (a)  "  That  if  any  person  or  per- 
sons shall  die  intestate,  being  owner  or  owners  of  lands 
and  tenements  within  this  state  at  the  time  of  his, 
her,  or  their  death,  and  leave  lawful  issue,  but  not  a 
sufficient  personal  estate  to  pay  their  just  debts  and 
maintain  their  children,  in  such  case  it  shall  be  law- 
ful for  the  administrator  or  administrators  of  such  de- 
ceased person  or  persons,  to  borrow  on  mortgage, 
giving  the  premises  for  security,  any  sum  or  sums  of 
money  not  exceeding  one-third  of  the  value  thereof, 
or  to  sell  and  convey  such  part  or  parts  of  the  said 
lands  or  tenements,  as  the  Orphan's  Court  of  the 
county  where  such  estate  lies,  shall  in  either  case 
from  time  to  time,  think  fit  to  allow,  order  and  direct, 
for  defraying  their  just  debts,  maintenance  of  their 
children,  and  for  putting  them  apprentices,  and  teach- 
ing them  to  read  and  write,  for  the  improvement  of 
the  residue  of  the  estate  if  any  be  to  their  advantage." 
And  by  section  twenty,  "  That  no  lands  or  tene- 
ments contained  in  any  marriage  settlement,  shall  by 
virtue  of  this  act,  be  sold  or  disposed  of  contrary  to 
the  form  and  effect  of  such  settlement,  or  shall  any 
Orphan's  Court,  allow  or  order  any  intestate's  lands 
or  tenements  to  be  sold,  before  the  administrator  or 
administrators  requesting  the  same,  shall  exhibit  a 

(a)  3Sm.  L.  150. 


OUAP.V.]  SALE  OF  REAL  ESTATE,  225 

» 

true  and  perfect  inventory;  and  a  conscionable  ap- 
praisement of  all  the  intestate's  personal  estate  what- 
soever, as  also  a  just  and  true  account,  upon  his,  her, 
or  their  solemn  oath  or  affirmation,  of  all  the  intes- 
tate's debts  which  shall  be  then  come  to  his,  her  or 
their  knowledge;  and  if  thereupon  it  shall  appear  to 
the  said  Orphan's  Court,  that  the  intestate's  personal 
estate  will  not  be  sufficient  to  pay  the  debts  and  main- 
tain the  children,  until  the  eldest  attains  the  age  of 
twenty -one  years,  or  to  put  them  out  to  be  apprenti- 
ces, or  to  teach  them  to  read  and  write,  then,  and  in 
every  such  case,  and  not  otherwise,  the  said  Orphan's 
Court,  shall  allow  such  administrator  or  administra- 
tors to  make  public  sale  of  so  much  of  the  lands  as 
the  said  Orphan's  Court,  upon  the  best  computation 
they  can  make  of  the  value  thereof,  shall  judge  ne- 
cessary for  the  purposes  aforesaid,  reserving  the  man- 
sion house  and  most  profitable  part  of  the  estate  till 
the  last;  but  before  any  such  sale  be  made,  the  said 
Orphan's  Court,  shall  order  so  many  writings  to  be 
made  by  the  clerk,  upon  parchment  or  good  paper,  as 
the  said  Orphan's  Court  shall  think  fit,  to  signify  and 
give  notice  of  such  sales,  and  of  the  day  and  hour 
when,  and  the  place  where,  the  same  will  be,  and 
what  lands  are  to  be  sold,  and  where  they  lie;  which 
notice  shall  be  delivered  to  the  sheriff  or  constables, 
in  order  to  be  fixed  in  the  most  public  places  of  the 
county  or  city,  at  least  ten  days  before  sale;  and  the 
sheriff  or  constables  are  hereby  required  to  make  pub- 
lication accordingly;  and  the  administrator  or  adminis- 
trators that  make  such  sale  shall  bring  his,  her,  or  their 
proceedings  therein  to  the  next  Orphan's  Court,  after 


226'  SALE  OF  REAL  ESTATE.  [BOOK  HI. 

the  sale  made,  and  if  it  shall  happen  that  any  lands  be 
sold  by  virtue  of  this  act,  for  more  than  the,  said  Or- 
phan's Court's  computation  of  the  value  thereof,  then 
the  administrator  or  administrators  shall  distribute  the 
same  as  by  this  act  is  required  for  intestate's  real  es- 
tates. 

And  by  the  twenty-first  section,  no  lands  tenements 
or  hereditaments  so  as  aforesaid  sold,  by  order  of  the 
Orphan's  Court,  shall  be  liable  in  the  hands  of  the 
purchaser  for  the  debts  of  the  intestate. 

The  nineteeth  and  twentieth  sections  of  the  fore- 
going act  are  copied  from  the  act  of  1705. 

The  power  of  the  administrator  under  the  nine- 
teenth section,  to  borrow  money  on  the  real  estate, 
in  case  of  a  deficiency  of  personal  assets,  was  no  doubt 
given  to  enable  him  to  preserve  the  real  estate  for 
the  minor:  and  was  wisely  given,  where  real  estate, 
especially  when  the  acts  of  1705,  and  1794  were 
passed,  was  rising  rapidly  in  value,  by  the  mere  lapse 
of  time. 

To  authorize  an  order  of  sale  it  is  requisite  by  the 
letter  of  the  act; 

1.  That  there  be  a  child,  or  children,  and  all  un- 
der the  age  of  twenty  one  years-, 

2.  That  the  personal  estate  be  insufficient  for  the 
payment  of  debts; 

3.  That  the  sale  of  the   estate  be  necessary  to 
maintain  and  educate  the  children,  and  put  them  out 
to  be  apprentices; 

4.  That  the  lands  be  not  bound  by  any  marriage 
settlement,  which  would  be  affected  by  an  order  of 
sale  5 


CHAP,  v.]  SALE  OF  REAL  ESTATE. 

5.  That  the  administrator  should  exhibit  a  true  and 
perfect  inventory,  and  a  conscionable  appraisement 
of  all  the  intestate's  personal  estate,  whatsoever;  as 
also  a  just  and  true  account  upon  his  solemn  oath  or 
affirmation  of  all  the  intestate's  debts  which  shall  then 
have  come  to  his  knowledge. 

But  the  proceedings  in  the  Orphan's  Court  in  early 
times  having  been  very  irregular,  the  Supreme 
Court  have  taken  great  latitude  in  the  construction 
of  the  act  in  order  to  avoid  the  evil  consequences 
which  might  result  from,  requiring  a  close  adherence 
to  its  words. 

They  have  determined  that,  under  the  act  of  1705, 
section  sixth,  which,  as  we  have  observed,  is  similar 
to  section  nineteenth  of  the  act  of  1794,  the  Orphan's 
Court,  might  order  a  sale  of  lands,  although  there 
were  no  minor  children  in  the  case,  (a)  And  it  has 
also  been  decided  in  the  case  of  Huckle  v.  Phillips 
that,  it  is  not  necessary  that  there  should  be  debts 
unpaid,  but  that  a  sale  for  the  maintenance  of  minor 
children  is  good.  (6) 

In  this  case  there  had  been  three  orders  of  sale 
made  by  the  court,  all  upon  the  petition  for  a  sale  to 
pay  debts  and  support  minor  children.  But  the  fact 
was,  that,  when  the  last  order  was  made,  there  were 
no  debts  due;  but,  there  was  an  infant  child,  and  the 
personal  estate  was  insufficient  to  maintain  and  edu- 
cate her.  And  Tilghman  C.  J.  declared  that  he  had 
no  doubt  that  a  decree  for  a  sale,  would  be  good,  for 
the  maintenance  only,  of  a  child.  Yet  both  he  and 

'a)  Moliere's  Less.  v.  Noe,  4  Dal!.  (&)  2  Serg.  and  R.  4. 

451,   io    note.    Fuller-ton's  case  cilcd. 


228  SALE  OF  REAL  ESTATE.  [BOOK  in, 

justice  Yeates  seem  desirous  to  put  the  case  upon  the 
point,  That,  when  the  first  and  second  orders  were 
made,  there  were  debts  to  be  paid,  and  a  minor  to  be 
supported,  that  the  decree  of  the  court,  was  for  both 
purposes,  and  that,  the  decree  was  but  half  executed 
by  the  sales  for  the  payment  of  debts,  and,  the  sale 
under  the  third  order  was  but  the  execution  of  the 
prior  orders,  (a) 

The  effect  of  these  decisions  is  to  convert  the  word 
"  and"  into  "  or"  and  to  authorize,  under  the  nine- 
teenth and  twentieth  sections  of  the  act  of  1794,  a 
sale  of  real  estate,  either  for  the  payment  of  the  debts 
of  the  intestate,  or  the  maintenance  and  education  of 
minor  children. 

Nor  is  it  necessary  that  the  accounts  of  an  admi- 
nistrator should  be  settled  previous  to  a  decree  for 
sale  of  the  intestate's  land,  (b) 

In  the  case  of  Larimer  et  al  v.  Irmn,  (c)  it  had 
been  determined,  that  a  decree  of  the  Orphan's 
Court  ordering  lands  to  be  sold  for  the  payment  of 
debts,  when  at  the  time  of  the  decree,  no  administra- 
tion account  was  settled,  and  it  appeared  before  the 
sale  took  place  that  the  intestate's  personal  estate  was 
more  than  sufficient  to  pay  his  debts,  was  void,  and 
that  no  title  passed  to  the  purchaser. 

But  in  the  case  of  Snyder  and  others  v.  Snyder, 
justice  Yeates  said,  "  that  if  the  order  of  the  Orphan's 
Court,  was  declared  in  the  case  of  Larimer  v.  Irwin 
to  be  void,  because  at  the  time  of  the  decree  no  ad- 
ministration account  had  been  settled;  I  never  can  be 

(a)  2  Serg.  and  R.  8,  10.  (c)  Cited  in  4  Binn.  104. 

(6)  Huckle  v.  Phillips,  2  Serg.  and  R.  4> 


CHAP,  v.]  SALE  OF  REAL  ESTATE.  229 

brought  to  assent  to  the  decision.  I  have  no  hesita- 
tion in  asserting,  that  in  the  counties  where  I  have 
practised,  at  least  nineteen  out  of  twenty  sales  under 
orders  of  Orphan's  Courts  would  be  avoided,  should 
the  doctrine  be  established,"  and  per  TILGHMAN  C.  J. 
2  Serg.  and  R.  7.  (a)  "  I  have  lately  examined  the  ma- 
nuscript of  judge  Smith,  who  sat  with  C.  J.  M'Kean 
in  that  cause,  and  it  appears  that  the  court  relied  not 
on  the  non  settlement  of  the  administration  account,, 
but  on  other  circumstances,  and  particularly  on  this, 
that  before  the  purchaser  under  the  decree  of  the 
court  had  paid  his  money,  the  administrator  settled 
his  account,  by  which  it  appeared,  that  there  was  a 
surplus  in  his  hands  after  paying  all  his  debts.  So 
that  this  case  of  Larimer  v.  Irwin,  contains  nothing 
to  sanction  the  principle,  that  the  settlement  of  the 
administration  account  is  necessary,  previous  to  a  de- 
cree for  sale  of  the  intestate's  land." 

In  practice,  it  is  not  customary  to  petition  the 
court  for  an  order  to  sell  the  real  estate  for  the  pay- 
ment of  debts,  until  the  personal  assets  are  exhaust- 
ed. An  account  is  then  settled  with  the  register, 
and  a  copy  thereof  together  with  a  schedule  on  oath  of 
the  debts  unpaid,  is  presented  to  the  Orphan's  Court. 
The  account,  of  course,  contains  the  inventory  and 
appraisement  of  the  estate,  which  have  been  filed 
with  the  register. 

But  it  is  frequently  convenient,  especially  in  the 
country,  where  the  terms  of  the  Orphan's  Court  are 
held  quarterly,  to  procure  an  order  for  the  sale  of 
real  estate  before  the  personal  assets  are  paid  away. 

(a)  Huckie  v,  Phillips. 


£30  SALE  OF  REAL  ESTATE.  [BOOK  nr, 

In  such  case,  the  letter  of  the  act  will  be  strictly  pur- 
sued by  laying  before  the  court,  the  inventory  and 
appraisement  (made  upon  oath)  and  a  statement  (also 
upon  oath)  of  all  the  debts  of  the  intestate,  which 
shall  have  come  to  the  knowledge  of  the  administrator. 

Upon  a  petition  (a)  containing  a  description  of  the 
property  intended  to  be  sold,  and  an  account  of  the 
circumstances  of  the  estate,  supported  by  the  forego- 
ing vouchers,  (b)  the  court  will  decree  the  sale  of 
such  estate,  or  so  much  thereof  as  it  may  deem  ne- 
cessary, and  will  direct  the  place  where,  and  the 
time  when,  (not  less  than  ten  days  after  public  notice,) 
the  estate  shall  be  exposed  to  sale,  and  will  direct 
the  administrator  to  make  return  of  his  proceedings 
therein,  at  the  next  stated  Orphan's  Court.  In  prac- 
tice the  time  and  place  of  sale  is  most  generally 
agreed  upon  between  the  party  applying  and  the 
clerk  of  the  court,  and  notice  thereof  is  given  by  ad- 
vertisements put  up  in  the  most  public  places  of  the 
county  and  published  in  one  or  more  newspapers 
nearest  to  the  premises  ordered  to  be  sold,  (c)  A  copy 
of  the  order  signed  by  the  clerk,  under  the  seal  of 
the  court,  is  delivered  to  the  administrator. 

If  the  order  of  the  court  be  not  adhered  to,  with 
respect  to  the  time  and  place  of  sale,  and  the  notice 
directed  to  be  given,  it  will  be  error,  and  the  sale 
will  be  set  aside  if  application  be  made  to  the  court 
before  confirmation. 

The  sale  having  been  made  pursuant  to  the  or- 
der, the  administrator  makes  his  return  to  the  court 
in  writing,  stating  that,  in  pursuance  of  the  order,  he 

(a)  Appendix  No.  17.  (c)  Appendix  No.  1Q. 

(6)  Appendix  No.  18. 


CHAP,  v.]  SALE  OF  REAL  ESTATE. 

has  sold  the  estate  to  A  B  for dollars,  he  be- 
ing the  highest  and  best  bidder,  and  that  the  high- 
est and  best  price  bidden  for  it;  and  prays  that  the 
sale  so  made  should  be  confirmed,  (a)  And  though 
the  return  should  be  regularly  made  at  the  next 
court  after  sale-,  yet  if  returned  to  another  court,  it 
seems  to  be  good.  Rahm  v.  North,  2  Ye?tes.  1 18. 

Whereupon  if  there  appear  no  objection,  the  court 
confirms  the  sale  nisi:  that  is  unless  exceptions  be 
filed,  on  or  before  the  next  stated  Orphan's  Court 
day,  thus  giving  to  all  interested  ample  time  to  make 
objections  if  any  exist. 

If  for  want  of  buyers,  or  any  other  cause,  the  pro- 
perty be  not  sold  at  the  time  and  place  mentioned, 
the  administrator  may  adjourn  the  sale,  but  not  beyond 
the  day  of  the  succeeding  court.  (6)  If  it  be  not  then 
sold,  report  of  the  proceedings  are  to  be  made  to  the 
Court;  and  if  it  be  intended  to  make  further  trial  to 
sell,  a  new  order  is  procured. 

A  practice  prevails  in  the  first  judicial  district,  re- 
lative to  the  sale  of  real  estates  by  executors,  admin- 
istrators and  guardians;  concerning  the  legality  of 
which,  there  are  many  doubts.  If  at  the  sale  an  ade- 
quate price,  in  the  opinion  of  the  executor,  &c.  be 
not  bidden  for  the  property,  he  bids  above  the  last 
offer  and  it  is  stricken  off  to  him:  who  considering 
himself  as  trustee  for  the  estate,  does  not  hold  this  to 
be  a  purchase  of  the  property,  but  a  bidding  in,  or  a 
refusal  to  sell  at  the  price  bidden. 

This  bidding  upon  the  principles  laid  down  by  the 
Court,  in  the  case  of  Guier  v.  Kelly,  (b)  must  be  at  the 

(a)  Appendix  No.  20.  (c)  2  Bian.  299,  300. 

(b)  Rahm  r.  North,  2  Yeates  117. 


SALE  OF  REAL  ESTATE.  [BOOK  m. 

risk  of  the  executor.  He  will  be  chargeable  for  any 
loss  sustained.  For  if  a  trustee  purchase  an  estate 
entrusted  to  him  to  sell,  his  purchase  will  be  decla- 
red void  and  a  new  sale  ordered,  (a)  If  the  second 
sale  produce  more  than  the  first,  he  must  account  for 
it,  but  if  less  he  is  chargeable  with  the  difference. 
He  is  not  suffered  to  say  that  the  estate  was  not  worth 
what  he  agreed  to  give  for  it,  (6)  having  perhaps 
prevented  some  one  else  from  purchasing. 

But  there  is  this  distinction  between  the  case  above 
put,  and  that  of  Guier  v.  Kelly:  in  the  former  the  ex- 
ecutor or  administrator,  buys  expressly  for  the  estate, 
and  in  the  latter  the  executor  bought  avowedly  for 
himself.  And  it  would  be  dealing  hardly  with  a 
trustee,  who,  in  the  exercise  of  his  best  discretion  to 
benefit  the  trust,  does  it  an  unintended  and  fortuitous 
injury,  to  hold  him  responsible.  On  the  other  hand, 
however,  it  may  be  urged,  that  when  the  biddings  for 
an  estate  are  about  its  value,  which  value  is  best  ascer- 
tained in  an  open  market,  it  is  the  folly  of  an  execu- 
tor to  place  an  extraordinary  value  thereon,  and  by  set- 
ting up  his  own  judgment  against  that  of  others,  to  in- 
duce a  loss  to  the  estate:  and  that  if  the  biddings  be  be- 
neath its  worth  yet  the  loss  will  not  be  the  executor's. 

Losses  have  frequently  been  sustained  by  refusal 
of  the  executor  or  administrator  to  sell  at  a  price  bid- 
den, but  they  will  bear  no  comparison  with  those 
which  must  have  been  incurred,  had  the  executors 
sold,  at  all  times,  at  the  highest  price  offered.  It 
would  therefore  seem  to  be  the  true  policy  of  the  law, 
in  this  as  in  other  cases,  to  hold  the  trustee  answera- 
ble for  honesty  and  sound  discretion  only. 

(a)  2  Yeates  1 17.  2  Binn.  300.  (6)  Guier  v.  Kelly.  2  Bian.  299. 300.. 


CHAP,  v.]  SALE  OF  REAL  ESTATE.  233 

The  law  is  clearly  settled,  that  a  person  entrusted 
to  make  a  sale  of  property,  cannot  become  a  pur- 
chaser, without  the  consent  of  the  parties  for  whom 
he  is  interested,  (a)  And  consequently,  an  executor 
or  administrator  cannot  sell  to  Jhimself. 

There  are  two  decisions  however,  in  our  courts, 
which  seem  to  militate  against  this  principle.  In 
Rham  v.  ./Vorf/i,  (6)  the  court  intimates,  that  the  exe- 
cutor might  derive  a  title  through  the  intervention  of 
a  third  person-,  that  is,  as  I  understand  it,  that  had  the 
title  been  made  to  A,  and  from  him  to  the  adminis- 
trator it  would  have  been  good. 

In  the  case  of  Eickelberger  v.  Barnitz,  (c)  which  was 
a  sale  by  three  executors  to  certain  persons  who  were 
trustees  of  a  company,  of  which  one  of  the  executors 
was  a  partner;  the  court  held,  "  that  where  two  or 
more  executors  sell  lands  openly  and  fairly,  and  a 
stranger  purchase  for  one  of  them  at  a  full  price, 
such  sale  is  not  necessarily  void.  That  there  was 
a  solid  distinction  in  reason,  between  this  case,  and 
a  purchase  made  by  a  single  executor.  That  there 
were  proper  checks  on  the  coexecutor  and  it  was  not 
in  his  power  to  conceal  a  fraud  if  one  was  intended. 
The  coexecutor  having  become  a  purchaser,  was  mat- 
ter of  evidence  respecting  a  fraud,  but  not  merely  of 
itself  a  fraud  to  vacate  the  contract.  The  fraud  must 
be  judged  of  by  a  fair  contrast  of  all  the  circum 
stances,  and  it  is  seldom  indeed,  that  two  cases  ex- 
actly agree." 

(a)  Rham  v.  North,  2  Yeates,  117.  La-  (6)  2  Yeates,  17. 

zarusv.  Brysen,  3  Binn.  54.  Provost  (r)   1  Yeates,  307. 

v.  Gratz,   1   Pet.  Rep.  368. 


234  SALE  OF  REAL  ESTATE.  DBOOK  HI. 

From  these  cases  it  may  be  inferred,  that  a  sale 
by  an  executor  or  administrator  to  himself,  by  the  in- 
tervention of  a  third  person  would  not,  be  ipso  facto 
void,  but  that  its  validity  would  rest  upon  the  cir- 
cumstances attending  it;  that,  if  the  circumstances 
were  fair  and  honest,  the  sale  would  be  good.  Yet 
the  weight  of  authority  and  principle  is  against  this 
deduction. 

But  whatever  may  be  the  effect  of  such  sale  be- 
tween the  trustee  and  his  cestuy  qui  tritst,  it  is  clear, 
that  it  shall  not  be  disturbed  to  the  prejudice  of  a 
subsequent  bona  fide  purchaser-,  (a)  as  where  the  de- 
fendant in  ejectment  made  title  under  a  judgment 
against  A,  upon  which  judgment  the  land  was  sold 
by  venditioni  exponas,  and  was  conveyed  by  the 
sheriff  to  B,  the  agent  of  the  sheriff,  who  soon  after 
reconveyed  to  the  sheriff  for  the  price  at  which  he  B 
bought  it,  and  was  by  the  sheriff  sold  to  C,  a  bona 
Jide  purchaser  for  a  valuable  consideration  and  with^ 
out  notice  of  any  secret  agreement  between  B  and 
the  sheriff  It  was  held,  that  though  this  sale  was 
void,  as  between  the  representatives  of  the  debtor 
and  the  sheriff,  where  he  was  purchaser  without 
the  debtor's  consent,  yet  it  could  not  be  disturbed  to 
the  prejudice  of  the  subsequent  bona  Jide  purchaser 
without  notice,  (b) 

What  was  the  effect  of  a  sale  of  the  lands  of  an 
intestate,  by  order  of  the  Orphan's  Court,  upon  the 
lien  of  his  debts,  appears  to  have  been  first  mooted  in 
the  case  of  Graff  v.  Smith's  exrs.  I  Dall.  481. 

Certain  estates  of  the  intestate  had  been  sold  for 

(a)  Lazarus  v.  Dry-son,  3  Dion.  54.     (6)  Ibid. 


OHAP.V.J  SALE  OF  REAL  ESTATE.  235 

the  payment  of  debts,  and  the  proceeds  had  been 
wasted  by  the  administrator:  actions  were  subsequent- 
ly brought  by  the  creditors  of  the  intestate,  judgments 
obtained,  and  executions  issued,  which  were  levied 
upon  the  lands  not  sold  by  order  of  the  court.  And 
one  of  the  questions  in  the  case  was,  whether  the 
purchasers  under  the  order  of  the  Orphan's  Court 
were  bound  to  contribute.  The  administrator  who 
was  also  the  eldest  son  of  the  intestate,  had  sold  a 
portion  of  the  lands  which  had  been  allotted  to  him 
in  distribution. 

Shippen  President,  in  delivering  the  opinion  of  the 
court,  said,  "  These  purchasers/I  acknowledge,  ap- 
pear to  me  to  stand  in  very  different  light  from  the 
voluntary  purchasers  from  the  eldest  son.  The  law 
for  the  benefit  of  the  families  and  creditors  of  per- 
sons dying  intestate,  has  vested  the  Orphan's  Court 
with  power  to  direct  the  sale  of  certain  parts  of  the 
intestate's  real  estate  for  the  payment  of  his  debts. 
The  same  law  has  directed  the  means  of  information 
to  be  given  to  the  court,  to  prevent  imposition,  and 
dismemberment  of  the  real  estate.  The  power  given 
to  the  Orphan's  Court  by  this  act  is  very  great,  and 
ought  to  be  discreetly  exercised;  but  when  the  sale  is 
made  under  their  order,  it  is  certainly  a  good  one. 
The  administrator  is  vested  with  as  complete  a  pow- 
er to  sell  the  specified  part  of  the  real  estate,  as  he 
has  by  the  common  law,  to  sell  the  personal;  and  the 
purchasers  from  him  ought  to  hold  as  securely  in  the 
one  case  as  the  other.  To  say,  that  because  the  ad- 
ministrator is  to  exhibit  upon  oath  an  account  of  the 
debts,  therefore  the  purchasers  are  to  look  to  the 


236  SALE  OF  REAL  ESTATE.  [BOOK  in. 

payment  of  those  debts,  is  in  effect,  saying  that  the 
purchasers  are  to  look  to  the  legal  exercise  of  the 
power  vested  in  the  Orphan's  Court,  who.  may,  un- 
questionably, impose  such  terms  upon  the  adminis- 
trator, as  are  necessary  to  secure  to  the  creditors  and 
children,  the  consideration  money  arising  from  the 
sales;  and  such  security  has  in  fact,  been  required  in 
many  instances  by  the  Orphan's  Courts  in  Pennsyl- 
vania. Besides,  if  the  purchaser  is  to  look  to  the 
payment  of  the  debts,  he  must  likewise  look  to  the 
other  objects  for  which  the  land  is  to  be  sold;  that  is, 
the  education  and  maintenance  of  the  children,  and 
the  proper  improvement  of  the  residue  of  the  estate ; 
which  no  law  founded  in  reason  could  require." 

B^  the  twenty-first  section  of  the  act  of  1794,  the 
law  laid  down  in  this  case  was  confirmed  and  estab- 
lished, so  far  as  it  relates  to  the  discharge  of  the  lien 
of  the  testator's  debts,  from  lands  sold  by  order  of  the 
Orphan's  Court,  yet  a  question  afterwards  arose, 
whether  the  act  of  1794,  embraced  the  lien  of  judg- 
ments rendered  against  the  testator  in  his  life  time. 

This  was  considered  and  settled  in  the  case  of  Mo- 
liere's  lessees  v.  JVoe.  4  Dall.  450,  in  which  C.  J. 
Tilghman  remarked,  "  That  if  we  consider  the  plain 
meaning  of  these  words,  (the  2 1st  sec.  act  1794)  the 
lands  thus  sold  are  discharged  of  the  lien  of  judg- 
ments. I  think  no  man  learned  or  unlearned  would  un- 
derstand the  word  debts  as  excluding  judgments.  The 
counsel  for  the  plaintiffs  do  not  contend  so;  but  they 
argue  that  although  a  judgment  is  a  debt,  (taking  the 
word  debt  in*  its  largest  signification,)  yet  to  avoid 
great  injustice  and  inconvenience,  the  legislature 


CHAP,  v.]  SALE  OF  REAL  ESTATE. 

must  be  supposed  to  have  intended  only  those  debts 
which  were  not  a  lien  in  the  life  of  the  intestate.  The 
avoidance  of  injustice  and  inconvenience  is  a  most  de- 
sirable object,  and  the  court  will  always  strive  to 
attain  it.  But  they  must  not  overleap  the  bounds  of 
their  duty.  They  have  power  to  construe  laws,  but 
not  to  make  or  alter  them,  and  where  the  meaning  of 
the  legislature  is  plain,  the  court  have  no  right  to  re- 
gard inconveniences.  General  expressions  have 
sometimes  been  construed  so  as  to  be  restrained  to 
particular  cases;  but  to  authorise  such  construction  it 
must  appear,  that  the  use  of  the  words  in  their  gene- 
ral sense  would  produce  absurdity,  contradiction,  or 
such  flagrant  injustice,  as  it  could  not  be  supposed  the 
legislature  meant  to  sanction.  Upon  a  careful  ex- 
amination of  the  act  in  question,  I  cannot  see  that  the 
discharge  of  the  lands  from  the  lien  of  the  judgment  in 
the  hands  of  the  purchaser,  will  produce  any  such  con- 
sequences. No  inconvenience  will  result  if  the  Or- 
phan s  Court  and  the  administrator  do  their  duty.  The 
land  will  certainly  sell  better,  for  being  discharged  from 
liens,  and  it  makes  no  odds  to  the  judgment  creditors  by 
what  person  they  are  sold-,  provided  they  are  sold 
fairly,  and  the  proceeds  are  faithfully  applied.  I  am 
clearly  of  the  opinion  that  they  must  be  applied  to  the 
payment  in  the  first  place  of  the  liens  which  existed 
in  the  life  time  of  the  intestate  according  to  their  res- 
pective priority.  There  is  no  intimation  in  any  part 
of  the  act  to  the  contrary,  and  to  say  that  judgment 
creditors  should  not  have  a  preference  in  the  applu 
cation  of  such  proceeds  would  produce  this  monstrous 
injustice  that  those  creditors  would  preserve  the  ben- 


238  SALE  OF  REAL  ESTATE.  [BOOK  in. 

efit  of  their  lien  in  case  a  man  made  a  will,  but  lose 
it  if  he  happened  to  die  intestate. 

Before  I  dismiss  this  subject  I  will  give  my  opinion 
concerning  debts  due  by  mortgage,  which  were  men- 
tioned in  the  course  of  the  argument.  I  conceive 
them  to  stand  on  a  different  fooling  from  judgments, 
because  the  mortgagee  is  strictly  speaking,  the  own- 
er of  the  land  and  may  recover  it  in  ejectment.  The 
mortgagor,  has  no  more  than  an  equity  of  redemption: 
Nor  have  the  Orphan's  Court  power  to  sell  a  great- 
er estate  than  he  is  lawfully  possessed  of.  It  will  be 
seen  that  in  the  14th  section  of  the  act  where  the  or- 
der in  which  debts  are  paid  is  designated,  there  is  no 
mention  of  mortgages,  which  evidently  shows  that  the 
mortgagee  looked  to  the  land  for  his  security. 

The  question  now  decided  is  important  to  the  pub- 
lic; particularly  as  different  opinions  have  been  en- 
tertained concerning  it. 

As  it  must  henceforth  be  considered  as  settled,  I 
make  no  doubt  but  the  Orphan's  Courts  in  the  several 
counties  will  use  proper  vigilance  to  prevent  injury 
to  j  udgment  creditors.  They  have  full  power  to  see 
that  sales  are  made  fairly  and  with  due  notice,  and  to 
exact  security  from  the  administrator  in  proportion  to 
the  increased  funds  which  may  come  to  his  hands. 
These  precautions  assisted  by  the  attention  of  the 
creditors  to  their  own  interest,  will  tend,  I  flatter 
myself,  to  produce  sales  to  the  greatest  advantage,  • 
and  the  faithful  application  of  the  proceeds." 

This  decision  so  far  as  it  relates  to  the  effect  of  judg- 
ments, after  sale  by  order  of  Orphan's  Court,  is  un- 
questionably in  unison  with  the  spirit  and  letter  of 


CHAP,  v.]  SALE  OF  REAL  ESTATE.  239 

the  act  of  1794.  But,  with  great  deference  to  the 
authority  of  the  court,  it  may  be  questioned  whether 
its  opinion  as  to  the  tenacity  of  the  mortgage  is  free 
from  objection.  The  lien  of  the  mortgage  after  such 
sale  was  not  a  point  in  the  case,  and  though  the 
court  volunteered  its  opinion  it  is  possible  it  was  not 
fully  argued. 

Originally  the  mortgagee  may  have  been  deem 
ed  the  legal  owner  of  the  estate  at  common  law. 
But  equity  and  law  have  long  considered,  the  mort- 
gage a  pledge  for  the  payment  of  money,  or  the  per- 
formance of  some  specific  act.  And  though  the 
mortgagee  obtain  possession  he  is  but  a  trustee  for 
the  mortgagor,  and  must  account  with  him  for  the 
profits  of  the  debt  and  interest.  This  debt  therefore 
is  but  a  lien,  and  the  deed  of  mortgage  the  evidence 
of  its  existence.  The  ordinary  remedy,  and  perhaps 
the  oiily  one  contemplated  by  the  legislature,  is  that 
by  scire  facias,  judgment  and  execution,  on  which 
he  obtains  his  money  from  the  pledge,  in  case 
purchasers  cannot  be  found,  he  may  obtain  an  exclu- 
sive and  absolute  title  to  the  pledge  itself. 

A  mortgage  then  being  but  a  debt,  secured  by 
the  pledge  of  land,  why  should  not  the  land  be  re- 
leased when  sold  by  an  order  of  the  Orphan's  Court. 
The  mortgage  can  bind  only  the  interest  of  the  mort- 
gagor in  the  land;  if  there  be  a  prior  judgment,  it 
may  be  sold  under  it,  and  be  released  from  the  mort- 
gage, (a)  Why  then  should  not  this  be  the  ease  on  a 
sale  for  the  payment  of  debts?  Is  there  any  reason 

(a)  Febiger  v.  Craighard,  2  Yeates  42.  act  of  Assembly,  1705.    sec..  4. 
1  bin.  L.  59.  Carkliuffv.  Anderson,  3  Binn.  5. 


240  SALE  OF  REAL  ESTATE.  [BOOK  in. 

why  the  mortgage  should  stay  or  incumber  a  sale  for 
the  payment  of  debts  at  the  instance  of  the  debtor's 
representatives,  when  it  has  no  such  operation  where 
the  sale  is  at  the  instance  of  the  creditor?  Is  it,  that  the 
pledge  will  be  taken  out  of  the  hands  of  the  lender, 
by  such  a  sale?  So  it  is,  by  a  sale  by  virtue  of  an  ex- 
ecution on  a  prior  judgment,  or  on  sci.  fa.  on  the 
mortgage.  But  if  the  pledge  be  taken  away  the  value 
of  it,  or  the  sum  for  which  it  was  given,  is  returned 
to  the  lendor,  and  by  becoming  a  purchaser,  Jie  may 
hold  the  pledge  still,  whether  it  be  really  worth 
more  than  he  loaned  on  it,  or  less. 

The  words  of  the  act  of  1794,  are  sufficiently  gene- 
ral, and  without  straining,   embrace   debts  due  on 
mortgage.  "  No  lands,  tenements  and  hereditaments 
so  as  aforesaid  sold  by  order  of  the  Orphan's  Court, 
shall  be  liable  in  the  hands  of  the  purchaser  for  the 
debts  of  the  intestate.5'   The  meaning  of  the   word 
"  debts''  cannot  be  mistaken;  it  is  the  incumbrance 
which  fetters  the  property.    What  is  the  object  of 
the  law?  to  free  the  intestate's  estate  from  the  bur- 
den of  his  debts,  in  the  hands  of  the  purchaser — to 
enable  the  administrator  to  sell  the  estate  with  great- 
er facility,  and  on  better  terms,  and  to   pay   more 
speedily  the  intestate's  debts.      And  as  the  whole  va- 
lue of  the  estate  comes  into  his  hands,  and  the  debts 
are  to  be  paid  according  to  their  priority,  the  mort- 
gage creditor  and  every  other  creditor  are  in  precise- 
ly the   same   situation,  as  if  the  estate  had  been  sold 
under  the  first  judgment  or  mortgage.     Any  other 
construction  of  the  act  must  fetter  the  alienation  of 
property,  which  the  genius  of  our ,  government  ab- 
hors. 


CHAP,  v.]  SALE  OF  REAL  ESTATE.  241 

The  vigilance  which  the  supreme  court  presumed 
the  Orphan's  Courts  would  exercise  over  the  sales  of 
real  estate,  and  the  conduct  of  administrators,  by  ex- 
acting proper  security,  is  now  made  a  duty  by  statute 
passed  twenty-sixth  of  March,  1808,  (a)  which  pro- 
vides, that, 

"  Where  the  Orphan's  Court  of  any  county  hath 
heretofore  decreed  or  hereafter  may  decree  a  sale  of 
an  intestates  real  estate,  or  part  thereof  by  the  ad- 
ministrators, the  said  court  is  hereby  authorized  to  re- 
quire and  take  sufficient  sureties  from  such  adminis- 
trators, conditioned  for  the  faithful  execution  of  the 
powers  committed  to  them  in  making  such  sale,  and 
truly  to  account  for  and  pay  over  the  proceeds  there- 
of in  such  manner  as  the  said  court  shall  legally  de- 


cree." 


The  terms  of  this  act  do  not  extend  to  the  case  of 
executors  selling  under  the  authority  of  the  Orphan's 
Court,  because  until  the  first  of  April,  1811,  that 
court  had  no  power  to  decree  the  sale  of  the  lands  of  a 
deceased  testator.  But  the  reason  of  the  law  extends 
to  the  case  of  an  executor.  For  though  he  be  not 
called  upon  to  give  security  in  ordinary  cases,  be- 
cause his  appointment  is  evidence  of  the  trust  and 
confidence  of  the  testator  j  yet  as  the  sale  of  real  es- 
tate by  the  order  of  the  court,  is  in  cases  only  where 
the  power  to  sell  has  not  been  delegated  by  the  testa- 
tor, the  testator  is  pro  tanto,  an  administrator,  an 
agent  selected  by  the  law,  and  not  by  the  decedent. 

On  these  principles  the  court  of  the  first  district 
have  established  a  rule  which  compels  executors 

(a)  4  Sm.  L.  517. 

H  h 


242  SALE  OF  REAL  ESTATE.  [BOOK  ui. 

selling  lands  by  its  order,  to  give  security   in  like 
manner  as  administrators. 

By  rule  of  June  1818,  of  that  court,  executors  and 
administrators  are  to  give  bond  with  surety,  in  the 
amount  of  the  property  sold,  and  one-third,  in  addition 
thereto,  conditioned  as  is  required  by  the  above  reci- 
ted act. 

SECTION  v. 

Of  sale  for  payment  of  debts  after  final  settlement  of 
account  of  Executor  or  Administrator. 

The  fourth  case  in  which  the  representatives  of  the 
decedent  have  power  to  sell  his  real  estate,  arises 
under  the  act  of  first  of  April,  1811,  section  second,  (a) 
which  declares,  that  "  whereas  it  frequently  happens, 
that  on  the  final  settlement  of  the  accounts  of  the  es- 
tates of  testates  and  intestates,  the  personal  assets  are 
found  to  be  deficient,  and  the  balance  is  decreed  to 
be  and  remain  chargeable  on  the  real  estate  of  the 
testator  or  intestate.  It  is  therefore  provided,  that, 

"  In  all  cases  after  the  final  settlement  of  any  ad- 
ministration account  in  the  Orphan's  Court,  if  it  shall 
appear  that  there  are  not  sufficient  assets  to  pay  and  sa- 
tisfy the  balance  appearing  to  be  due  and  owing  from 
the  estate  of  tjie  deceased,  it  shall  be  lawful  for  the 
said  court,  on  the  application  of  the  executors  or 
administrators,  or  any  others  interested  therein,  to 
make  an  order,  that  so  much  of  the  real  estate  of 
which  the  deceased  was  seized  or  possessed  at  the 
time  of  his  decease,  shall  be  sold  by  the  executors  or 
administrators,  as  in  the  judgment  of  the  court,  shall 

(a)  5  Sm.  L.  258. 


CHAP.  v.J  SALE  OF  REAL  ESTATE.  £43 

be  sufficient  to  satisfy  such  balance;  and  the  said  court 
shall  likewise  decree  in  such  cases,  what  contribution 
shall  be  made  by  the  heirs  or  devisees  respectively 
towards  the  payment  of  any  debts  chargeable  on  the 
real  estate  of  any  testator,  either  generally  in  the 
first  instance,  or  where  the  land  agreed  to  be  sold, 
shall  have  been  in  any  manner  devised  to  any  heir 
or  devisee,  after  any  such  sale  being  made:  and  all 
such  sales  shall  be  had,  made,  and  conducted,  as  in 
other  cases  of  sales  made  under  the  decree  of  the 
Orphan's  Court  by  the  existing  laws." 

The  order  to  sell  real  estate  under  this  act,  is  made 
only  on  a  final  settlement  of  the  administration  ac- 
count, exhibiting  a  balance  due  and  owing  from  the 
estate. 

A  final  settlement  is  that  which  contains  the  dispo- 
sition of  all  the  personal  estate  of  the  decedent.  And 
when  it  is  intended  as  a  foundation  for  an  order  of 
sale,  it  is  most  generally  and  with  great  propriety  ac- 
companied by  a  schedule  of  the  debts  due  from  the 
estate. 

This  settlement  is  made  before  the  register,  and 
after  due  notice  is  sent  by  him  to  the  Orphan's  Court, 
for  confirmation  and  allowance  on  some  stated  Or- 
phan's Court  day,  when  it  is  confirmed  nisi;  that  is, 
unless  exceptions  thereto  be  filed  on  or  before  the 
next  stated  Orphan's  Court  day,  at  which  time  if  no 
exceptions  have  been  filed,  application  is  made  by 
petition  for  an  order  of  sale. 

The  petition  (a)  should  set  forth,  that  the  account 
of  the  administration  of  the  estate  has  been  finally 

(a)  Appendix.  No.  21. 


244  SALE  OF  REAL  ESTATE.  [BOOK  in. 

settled 5  and  should  refer  to  it,  as  filed  in  the  Orphan's 
Court,  or  should  be  accompanied  by  such  account, 
that  the  court  may  see  for  themselves  the  basis  of 
their  order,  and  prevent  the  abuses  which  sometimes 
are  practised  under  this  law,  by  the  sale  of  large  es- 
tates for  small  balances,  that  the  executor  or  admi- 
nistrator may  get  the  proceeds  into  his  hands.  The 
right  to  apply  for  an  order  of  sale  under  this  act,  is 
not  confined  to  the  executor  or  administrator-,  any 
person  interested,  as  a  creditor  for  instance,  may 
make  such  application  with  the  view  of  obtaining  pay- 
ment of  his  debt. 

The  sales  of  estates  under  this  act,  are  conducted 
as  under  the  act  of  1794,  the  court  appointing  time 
and  place.  And  they  may  be  made  by  one  adminis- 
trator, though  there  are  several.  The  object  of  the 
law  beiiig  to  procure  a  sale  of  the  real  estate  to  sa- 
tisfy the  debts  due  from  the  deceased  5  it  is  immate- 
rial to  the  attainment  of  that  object  whether  the  sale 
was  made  by  one  or  all  of  the  administrators.  The 
words  executors  or  administrators,  are  expressions 
pointing  out  the  persons  to  whom  in  general  the  au- 
thority is  to  be  given,  without  intending  that  the 
court  shall  at  all  events,  commit  the  authority  to  the 
whole  of  them,  (a) 

It  sometimes  happens,  that  administrators  who  sell 
real  estates  of  intestates  pursuant  to  an  order  of  the 
Orphan's  Court,  die  before  conveyance  is  made. 
From  hence  flow  inconveniences,  for  remedy  of 
which  it  is  provided  by  the  act  of  second  April,  1802, 
section  first,  (b)  that, 

(a)  Bickle  r.  Young,  3  Serg.  and  R.  234.  (6)  3  Sm.  L.  500, 


OHAP.  v.]  SALE  OF  REAL  ESTATE. 

"  In  all  cases  hereafter,  where  a  sale  shall  be  duly 
made  by  virtue  of  an  order  of  Orphan's  Court,  ena- 
bling; the  administrator  of  any  intestate,  to  make  sale 
of  the  real  estate  of  such  intestate,  or  any  part  there- 
of; and  the  administrator  selling  the  same  under  such 
order,  shall  happen  to  die  before  a  deed  of  convey- 
ance is  made  to  the  purchaser  or  purchasers,  it  shall 
be  lawful,  to  and  for  an  administrator,  de  bonis  non  of 
such  intestate,  when  such  administration  shall  be 
granted,  to  and  for  the  executor  or  administrator  of 
the  person  or  persons  so  dying,  to  make  and  execute 
to  the  purchaser  or  purchasers  of  any  such  estate,  a 
deed  or  deeds  of  conveyance  for  the  same."  And 
by  section  third; 

"  In  all  cases  where  any  administrator  or  adminis- 
trators having  sold  lands  by  order  of  the  Orphan's 
Court  shall  die  intestate,  not  having  executed  a  con- 
veyance thereof,  and  no  person  shall  within  three 
months  thereafter,  be  appointed  administrator  de  bo- 
nis non,  or  apply  and  be  appointed  to  administer  the 
estate  of  such  administrator  or  administrators  so  dying 
as  aforesaid,  it  shall  be  the  duty  of  the  Orphan's 
Court  of  the  proper  county,  on  petition  to  be  pre- 
sented by  the  purchaser,  setting  forth  the  original 
proceedings  under  the  order  of  court,  to  direct  the 
sheriff  of  the  county,  for  the  time  being,  to  make  and 
execute  the  necessary  deed  or  deeds  of  conveyance 
to  such  petitioner."  And  by  section  fourth; 

"  Every  deed  made  in  pursuance  of,  and  agreeably 
to  the  provisions  of  this  act,  shall  vest  the  property 
therein  described,  in  the  grantee,  as  fully  and  effec- 
tually as  if  the  same  had  been  made  by  the  person  or 


946    CONVEYANCES  BY  ADMINISTRATORS.   [BOOK  in. 

persons  who  have  sold  any  such  estate,  circumstanced 
as  aforesaid." 

The  letter  of  this  act  does  not  reach  the  case  of  a 
sale  under  the  Orphan's  Court,  by  an  executor 
dying  after  sale  and  before  deed  made.  And  at  the 
time  of  its  passage,  executors  had  no  authority  to  sell 
by  order  of  the  Orphan's  Court.  Yet,  there  can  be  no 
good  reason  against  the  validity  of  a  deed,  for  land  so 
sold  by  an  executor,  made  by  his  executor  or  adminis- 
trator, except,  that,  the  law  is  not  thus  written.  The 
same  reasons  of  convenience  apply  to  the  case  of  the 
executor,  as  to  that  of  the  administrator,  and  call  for 
legislative  remedy. 

SECTION   VI. 

Conveyance  by  Executors,  #c.,  on  the  contracts  of  de- 
cedents. 

Executors  and  adminjftrators  may  not  only  sell 
lands  in  the  cases  above  stated,  but  by  the  authority 
of  the  act  of  assembly  thirty -first  March,  1792,  they 
may  convey  the  premises  contracted  to  be  sold  by 
their  decedents,  and  bring  suit  for  the  consideration 
money,  (a) 

By  section  first,  "  If  any  person  have  a  written 
contract,  or  written  evidence  of  a  contract,  whereby 
a  decedent  has  covenanted  to  convey  any  lands  to 
any  one  whom  such  person  may  represent,  which 
contract  had  not  been  complied  with,  in  the  life  time 
of  the  deceased,  and  no  sufficient  provision  for  the 
performance  thereof,  having  been  made  in  his  life 
time,  shall  either  in  his  own  right,  or  as  attorney, 

(a)  3  Sm.  L.  96. 


CHAP,  v.]    CONVEYANCES  BY  ADMINISTRATORS.    247 

agent,  trustee,  or  guardian  for  another,  before  bring- 
ing action  against  the  executors  or  administrators  of 
the  deceased,  cause  the  contract  to  be  proved  in  the 
supreme  court,  or  in  the  court  of  common  pleas 
of  the  county  in  which  the  lands  contracted  for  shall 
lie:  and  the  probate  being  adjudged  by  the  court  to 
be  sufficient,  the  prothonotary  shall  endorse  on  or 
annex  the  same  to  the  contract  or  to  a  copy  of  the 
evidence  thereof,  and  certify  the  same,  under  his 
hand,  and  seal  of  the  court;  whereupon  the  same 
shall  be  recorded  in  the  Roll's  office  of  the  common- 
wealth, or  in  the  office  for  the  recording  of  deeds  of 
the  county  wherein  the  lands  lie.  Whereupon  the 
executors  or  administrators  or  the  survivors  or  sur- 
vivor of  them,  may  present  a  petition  to  such  courts 
respectively,  praying  leave  to  make  and  execute  a 
deed  conveying  to  the  purchaser  or  his  heirs  or  as- 
signs, the  said  lands  contracted  for,  according  to  the 
true  intent  and  meaning  of  the  said  contract:  and  the 
court  having  considered  the  prayer  of  the  said  peti- 
tion and  the  contract  or  evidence  of  contract,  upon 
which  it  is  founded,  and  having  adjudged  the  same  to 
be  obligatory  between  the  parties,  shall  make  an  or- 
der authorizing  the  petitioners  to  make  such  convey- 
ance as  aforesaid,  and  the  same  being  made  and  exe- 
cuted, and  proved  or  acknowledged  according  to  law, 
shall  be  of  the  same  force  and  effect,  to  pass  and  vest 
the  estate  intended,  as  if  the  same  had  been  execut- 
ed by  the  decedent  himself  in  his  life  time."  And  by 
section  second, 

"  It  shall  and  may  be  lawful  for  the  executors  or 
administrators  of  any  such  decedent,  having  a  coun- 


248    CONVEYANCES  BY  ADMINISTRATORS    [BOOK  in. 

terpart  of  such  contract  or  evidence  of  contract  for 
the  payment  of  the  consideration  of  money,  for  any 
lands  or  tenements  agreed  to  be  sold,  but  not  con- 
veyed by  the  decedent,  in  his  life  time,  to  cause  the 
same  to  be  proved,  and  to  present  a  petition  in  man- 
ner aforesaid;  whereupon  the  same  proceedings  shall 
be  had,  and  with  the  same  force  and  effect,  as  is  here- 
in above  directed,  where  the  purchaser  or  his  repre- 
sentative shall  procure  such  contract  to  be  proved. 
But  no  deed  shall  discharge  the  lands  and  tenements 
therein  conveyed,  from  the  lien  of  the  consideration 
money,  until  it  be  actually  paid  or  secured  according 
to  the  terms  of  the  contract."  And  by  section  third, 

"  If  any  person  shall  commence  or  prosecute  an 
action  against  the  executors  or  administrators  of  any 
person  deceased;  upon  such  contract,  without  first 
causing  the  same  to  be  proved  and  recorded  in  man- 
ner aforesaid,  and  giving  notice  thereof  to  the  de- 
fendant, and  allowing  him  time,  until  six  weeks  after 
the  next  succeeding  court,  to  apply  for  leave  to  exe- 
cute a  deed  for  the  specific  performance  of  the  con- 
tract, in  manner  afore  said  j  such  plaintiff  shall  not  be 
entitled  to  recover  damages  and  costs,  for  the  non 
performance  of  such  contract,  if  the  defendant  shall 
plead  and  upon  the  trial  prove,  that  he  was  always 
ready,  on  reasonable  notice  to  perform  the  same,  and 
shall  before  the  trial  produce  in  court  a  deed  of  con- 
ve}rance  pursuant  to  the  contract  duly  made  and  exe- 
cuted according  to  the  forms  required  by  the  act." 

In  the  case  of  Young  v.  Pleasants,  administrator  of 
Pembert&n,  (a)  it  has  been  decided  that  a  party  can- 
Co)  3  Yeates,  317. 


OHAP.  v.]        LIEN  OF  PURCHASE  MONEY.  249 

not  maintain  suit  against  the  administrator  or  execu- 
tor, without  first  proving  the  contract  in  court,  and 
putting  it  on  record;  though  the  defendant  shall  not 
have  pleaded  that  he  was  always  ready  on  reasonable 
notice  to  perform  the  contract-,  and,  that  an  adminis- 
trator with  the  best  intentions,  when  the  contract  has 
been  ever  so  fairly  executed  by  the  vendee  and  his 
intestate,  who  has  sold,  has  it  not  in  his  power  to 
make  the  conveyance,  unless  the  vendee  puts  it  in  his 
power  by  proceeding  regularly. 

SECTION  VIT. 
Of  the  lien  of  Purchase  Money. 

It  behoves  the  vendee  of  the  grantee  of  an  ad- 
ministrator to  look  well  to  the  payment  of  the  pur- 
chase money,  on  the  sale  from  the  administrator. 

For  in  two  cases  at  least,  of  conveyances  made  by 
administrators,  a  lien  is  attached  to  the  land  for  the 
unpaid  purchase  money.  According  to  the  views  of 
the  judges  of  the  supreme  court,  in  the  case  of 
Kaufelt  and  otliers,  judgment  creditors  of  Triechler  vs. 
Bower,  these  two  cases  are  anomalous,  in  the  law  of 
Pennsylvania,  (a) 

The  first,  is  under  the  second  section  of  the  act 
of  second  of  April,  1804,  (6)  by  which  the  court 
is  authorized  to  decree  the  estate  in  the  premises 
so  sold,  to  be  transferred  and  vested  in  the  pur- 
chaser, as  fully  as  the  intestate  held  the  same  at  his 
decease,  subject  and  liable  to  the  payment  of  the  pur- 
chase money,  according  to  the  terms  prescribed  by  the 
court  in  the  order  of  sale.  , 

(a)  7  Sergt.  &  R.  64.  (6)  4  Sm.  L.  1 84. 

i  i 


250        EFFECT  OF  THE  ORDER  OF  SALE.      [BOOK  in. 

The  second  is  under  the  second  section  of  the  above 
recited  act  of  1792,  by  which  it  is  declared  that  no 
deed  shall  discharge  the  lands  and  tenements  from  the 
lien  of  the  consideration  money,  until  it  be  actually  paid 
or  secured  according  to  the  terms  of  the  contract,  (a) 

This  recognition  of  the  lien  of  the  purchase  money, 
in  these  two  cases  by  the  legislature,  would  seem  to 
show  that  the  doctrine  of  such  lien,  has  not  been  so 
foreign  nor  so  odious  to  the  public,  as  the  court  have 
presumed,  in  the  case  of  Triechler  vs.  Bower,  above 
mentioned. 

SECTION  VIII. 

Of  the  effect  of  the  order  of  sale. 
The  system  by  which  the  real  estates  of  decedents 
are  sold,  and  title  made  to  the  purchaser,  and  by 
which  they  are  converted  into  assets  for  the  payment 
of  debts,  has  been,  by  continued  labour  and  care, 
wrought  up  with  a  considerable  degree  of  perfection. 
And  it  is  to  be  regretted  that,  the  purchasers  under 
the  decrees  of  the  Orphan's  Court,  are  not  as  secure, 
as  purchasers  under  the  judgments  of  the  other 
courts. 

By  the  ninth  section  of  the  act  of  1 705,  entitled, 
"  An  act  for  taking  lands  in  execution  for  payment 
of  debts,  it  is  provided,  that  if  the  judgment  warrant- 
ing an  execution  whereupon  any  lands,  tenements  or 
hereditaments  have  been  sold,  shall  be  reversed  for 
any  error,  the  lands,  &c.,  shall  not  be  restored,  nor 
the  sheriff's  sale,  and  delivery  thereof,  avoided,  (b) 

The  propriety  and  justice  of  this  rule  have  not  been 
sufficient  to  support  the  sale  of  real  estate  made  by 

(a)  3  Sm.  L.  67.  (6)  1  Sm.  L.  7. 


CHAP,  v.]     EFFECT  OF  THE  ORDER  OF  SALE.  251 

the  Orphan's  Court,  against  inquiries  into  the  pro- 
ceedings antecedent  to  the  decree,  and  recove- 
ries in  ejectment,  in  consequence  of  errors  in  such 
proceedings.  Nor  does  the  reason  usually  given  for 
the  distinction  between  the  effect  of  a  decree  of  the 
Orphan's  Court,  and  of  a  judgment  of  the  court  of 
Common  Pleas,  seem  satisfactory.  The  reason  given  is, 
that  much  irregularity  and  carelessness  have  prevail- 
ed in  the  proceedings  of  the  Orphan's  Court.  But 
the  judges  of  the  Orphan's  Court  and  of  the  court  of 
Common  Pleas  are  the  same;  and  the  judges  who 
would  be  careless,  and  suffer  irregularity  in  the  one, 
would  scarce  be  vigilant  and  regular  in  the  other. 

The  first  reported  case  on  this  subject  is  that 
of  Messinger  vs.  Kintner ',  (a)  in  which  the  valid- 
ity of  the  decree  of  an  Orphan's  Court,  unreversed  by 
appeal,  is  considered.  This  was  the  case  of  an  estate 
decreed  to  one  of  the  parties  in  distribution,  at  an  ap- 
praisement by  four  men,  appointed  by  the  court  with- 
out the  consent  of  parties.  The  party  to  whom  the  es- 
tate had  been  decreed,  had  married  a  daughter  of  the 
decedent;  there  was  a  minor  son,  and  other  minor 
children  who  were  not  represented;  the  land  was  ap- 
praised by  the  acre,  without  survey  of  the  quantity, 
which  was  stated  to  be  one  hundred  and  seventy- 
three  acres,  but  was  in  fact  two  hundred  and  seventy 
acres;"  the  plaintiff  in  the  action  defendant  below, 
to  whom  the  lands  were  decreed,  had  sold  part 
to  other  persons,  and  ejectment  was  brought  against 
him  and  his  vendees. 

The  counsel  of  the  plaintiff  in  error  contended, 

f»  4  Binn.   104. 


252  EFFECT  OF  THE  ORDER  OF  SALE,      BOOK  111. 

that  the  decree  though  erroneous,  ought  to  stand,  un- 
til reversed  by  the  regular  course  of  appeal,  and  ought 
not  to  be  questioned   in  this  collateral  way.     C.  J. 
Tilghman  said,  "  if  that  question  was  open  I  should 
think  it  well  worthy  of  consideration     But  after  the 
frequent  decisions  by  which  the  decrees  of   Or- 
phan's Courts  have  been  called  into  question  in  ac- 
tions of  ejectment,  I  am  bound  to  consider  the  law  as 
settled.     I  have  in  my  hands  a  manuscript  note  of 
the  case  of  the  lessee  of  Larimer  and  wife  v.  /new, 
tried  before  the  late  Chief  Justice  M'Kean,  in  the 
year  1798.     It  was  then  decided,  that  a  decree  of  the 
Orphan's  Court,  ordering  lands  to  be  sold  for  the 
payment  of  debts  was  void,  because  at  the  time  of  the 
decree,  no  administration  account  was  settled,  and  it 
appeared  before  the  sale  took  place,  that  the  intestate's 
personal  estate  w^as  more  than  sufficient  to  pay  the 
debts,  and   the  court  very    properly  laid  it  down, 
that  it  behooves  the  purchaser  at  a  sale  of  this  kind, 
to  see  that  the  proceedings  were  so  far  regular  as  to 
authorise  the  sale." 

Nor  is  the  vendee  of  a  purchaser  under  an  order 
of  the  Orphan's  Court  in  a  better  situation  than  his 
vendor.  For  the  chief  justice  continues,  "  It  has 
been  strongly  urged,  that  whatever  may  be  the  case 
as  to  Messinger,  those  persons  who  purchased  of  him 
and  have  made  improvements,  ought  not  to  be  dis- 
turbed in  their  possession.  But  their  case  is  not  to 
be  distinguished  from  Messingers^  because  they  are 
purchasers  with  notice.  Every  man  is  bound  to  take 
notice  of  a  record,  which  is  the  foundation  of  his  title. 
If  they  looked  into  the  title  at  all,  the  decree  of  the 


v  HAP.  v.]       EFFECT  OF  THE  ORDER  OF  SALE.  £53 

Orphan's  Court,  stared  them  in  the  face  at  the  first 
step,  and  seeing  the  decree,  they  must  take  notice, 
at  their  peril,  of  the  proceedings  on  which  it  was 
founded." 

Yeates  J.  appears  to  have  been  disposed  to  put 
the  decision  of  this  case  upon  its  particular  circum- 
stances; and  in  the  case  of  Snyder  v.  Snyder,  he  comes 
forth,  distinctly  in  favour  of  the  conclusiveness  of  the 
decree  of  the  Orphan's  C  ourt.  He  observed  in  Messin- 
ger  v.  Kintner,  "  it  was  also  contended,  that  the  de- 
cree of  the  Orphan's  Court  was  reversible  by  appeal 
only,  and  not  collaterally  in  a  different  suit.  This  may 
be  correct  as  a  general  proposition,  but  its  application 
is  denied  here.  The  defendant  in  error,  either  by  him- 
self or  guardians,  was  no  party  before  the  court,  or 
heard  by  them,  and  consequently  was  not  bound  by 
their  order.  It  was  res  inter  alias  acta.  Frequent  cases 
occur  where  objections  have  been  brought  by  a  child, 
on  the  valuation  and  confirmation  of  lands  to  another 
child;  and  so,  where  lands  have  been  sold  for  pay- 
ment of  the  father's  debts,  by  an  administrator  under 
an  order  of  the  Orphan's  Court.  It  has  not  been 
deemed  necessary  in  the  first  instance,  to  appeal  to 
this  court  to  reverse  the  decree." 

In  the  case  of  the  lessee  of  Snyder  v.  Snyder,  (a) 
the  very  point  came  in  question  and  was  decided 
by  Tilghman  C.  J.  and  Brackenridge,  Yeates  dis- 
senting. 

The  court  below  charged  the  jury,  that,  sale  hav- 
ing been  made  by  order  of  the  Orphan's  Court,  and 
afterwards  confirmed,  could  not  be  questioned  in 

(a)  6  Binn.  490. 


254          EFFECT  OF  THE  ORDER  OF  SALE.       [BOOK  in. 

ejectment,  but  stood  good  until  reversed  upon  appeal. 
The  chief  justice,  said,  "  The  law  is  clearly  not 
so.  The  Orphan's  Court  is  not  a  court  of  general 
jurisdiction,  and  with  respect  to  the  sale  of  lands  they 
have  no  other  power  than  is  conferred  by  act  of  assem- 
bly. It  might  be  more  convenient,  and  render  the 
law  more  uniform,  if  those  proceedings  were  rever- 
sible only  on  an  appeal;  but  after  the  long  practice 
which  has  prevailed  of  inquiring  into  these  proceed- 
ings in  actions  of  ejectment,  it  is  too  late  to  attempt 
an  alteration.  It  is  unnecessary  to  dilate  on  this  sub- 
ject, as  we  delivered  our  opinions  explicitly  in  the 
case  of  Messinger  v.  Kintner.  I  think  it,  however, 
proper  to  remark,  that  although  the  proceedings  of 
the  Orphan's  Court  may  be  reversed  in  an  ejectment, 
yet,  as  much  property  depends  on  these  proceedings, 
great  allowance  should  be  made  for  the  informal 
manner  in  which  they  have  been  conducted,  especi- 
ally where  the  titles  acquired  under  them  hare  been 
accompanied  with  long  possession." 

Yeates  J.  said,  "  upon  the  fullest  reflection,  I  do  not 
feel  disposed  to  retract  any  part  of  the  opinion  which  I 
delivered  in  Messinger  et  al.  v.  Kintner.  I  consider 
the  general  remark  to  be  correct,  that  the  decree  of 
the  Orphan's  Court  in  a  case  within  their  jurisdic- 
tion, is  reversible  by  appeal  only,  and  not  collate- 
rally in  another  suit.  The  settled  rule  is,  that  the 
merits  of  a  judgment  can  never  be  contested  by  any 
original  suit,  either  at  law  or  in  equity,  2  Burr  1009, 
1  H.  Black.  Rep.  294.  The  maxim  is  de  fide  et  qfficio 
judicis  non  recipitur  questio.  Hard.  127.  But  in 
Messinger  v.  Kintner  the  defendant  in  error,  a  minor 


CHAP,  v.]        EFFECT  OF  THE  ORDER  OF  SALE.  £55 

somewhat  about  nine  years  of  age,  was  attempted  to 
be  bound  by  proceedings  unsanctioned  by  law  or  jus- 
tice, to  which  neither  he,  his  guardian  nor  next  friend 
were  parties.    It  was  res  inter  alios  acta,  and  no  pre- 
sumption could  be  formed  in  favour  of  what  was  done. 
I  assimilate  the  present  case  to  a  sheriff's  selling  land, 
which  he  has  taken  into  execution  by  the  process  of 
law.     The  judgment  concludes  all  irregularities  in 
-the  previous  proceedings,  except  where  the  plaintiff 
in  the  execution  becomes  the  purchaser,  Goodyer  v. 
Junce,  Yelv.  179.     But  the  sale  must  be  fair,  and 
just  in  itself,  uninfluenced  by  threats  or  violence. 
The  officer  cannot  sell  to  himself.    Fraud  mil  vitiate 
any  act  whatever.    The  true  merits  of  the  case  rest 
on  the  honesty  and  fairness  of  the  public  sale,  and 
may  be  fully  contested  in  the  present  suit."  (a) 

If  the  decree  of  any  court  authorising  the  sale  of 
property,  should  protect  the  purchaser  from  inquiry 
into  the  proceedings  antecedent  to  the  judgment,  it 
would  seem  to  be  that  of  the  Orphan's  Court.  For 
the  right  and  the  expediency  to  sell  the  very  estate, 
are  the  points  determined  by  the  judgments  of  the 
court,  and  its  judgment  is  given,  pursuant  to  the  au- 
thority specially  conferred  by  statute.  It  is  conceded, 
that,  it  would  be  more  convenient,  and  render  the 
law  more  uniform,  if  these  proceedings  were  reversi- 
ble only  on  an  appeal,  and  that  if  the  question  were 
open,  it  were  well  worthy  of  consideration:  All  the 
evils  which  flow  from  uncertainty  and  doubt,  in  title 
to  real  estate  are  caused  by  the  law  as  it  is  now  set- 
tled, if  it  may  be  considered  as  settled,  by  a  divided 
court.  Whatever  doubts  may  exist  upon  the  subject 

(a)  6  Binn.  499. 


256          EFFECT  OF  THE  ORDER  OF  SALE.      [BOOK  m. 

would  be  well  terminated  by  an  act  of  assembly  putting 
the  purchaser  under  the  order  of  the  Orphan's  Court 
in  the  same  situation  as  a  purchaser  at  sheriff's  sale.* 

If  the  proceedings  antecedent  and  preparatory  to 
an  order  for  the  sale  of  real  estate,  by  the  Orphan's 
Court  have  been  regular,  but  the  record  thereof  be 
defective,  the  record  may  be  amended,  by  entering 
upon  it,  the  matter  which  has  been  omitted.  This  was 
determined  in  the  case  of  Kennedy  v.  Wachsmutli,  Phi- 
ladelphia, December,  1823,  Mss.  Rep. 

It  was  an  action  on  the  case  Tor  the  recovery  of 
damages,  for  the  non-performance  of  a  contract  for 
the  purchase  of  certain  lots  of  ground  in  the  cdunty 
of  Philadelphia.  By  the  contract,  the  plaintiff  was  to 
make  to  the  defendant  a  valid  and  legal  title  to  the 
lots,  and  the  defendant  alledged  that  such  title  was 
not  offered  him  by  the  plaintiff.  The  plaintiff's  title 
was  derived  as  follows: 

John  C.  Wells  died  intestate  in  the  year  1812  sei- 
zed in  fee  simple  of  the  said  lots,  leaving  a  widow  and 
five  children.  Letters  of  administration  were  grant- 
ed to  William  I^evis  and  Mary  Wells  his  widow.  On 
the  sixteenth  of  July,  1812,  the  administrators  peti- 
tioned the  Orphan's  Court  of  the  county  of  Philadel- 
phia, for  an  order  to  sell  the  real  estate,  and  at  the 
same  time,  exhibited  an  account  certified  by  the  Re- 
gister to  have  been  settled  before  him,  and  attested  by 
the  affirmations  of  the  administrators;  which  account 
included  in  one  item  the  amount  of  the  appraised  in- 

*  The  author  is  informed,  that  the  Supreme  Court  have  lately  reconsid- 
ered the  question  of  the  conclusiveness  of  the  decree  of  the  Orphan's 
Court  for  the  sale  of  real  estate,  and  have  prepared  an  opinion,  affirmatLvf 
of  its  conclusiveness.  If  this  opinion  can  be  obtained  in  time,  it  will  be  pub- 
lished jn  this  work. 


CHAP,  v.]  SALE  OF  REAL  ESTATE.  £57 

ventory,  and  shewed  a  balance  in  favour  of  the  estate 
in  their  hands  of  six  hundred  and  forty-seven  dollars 
and  twelve  cents,  and  also  an  inventory  and  appraise- 
ment of  all  the  intestate's  personal  estate,  together 
with  an  account  of  all  the  debts  due  to  and  from  the 
estate,  leaving  a  balance  due  from  the  estate  of  ten 
thousand  six  hundred  and  seventy-five  dollars  and 
eighty-seven  cents.  The  inventory  was  not  affirmed 
or  sworn  to,  but  the  appraisement  annexed  was  affir- 
med to,  before'the  register,  by  one  of  the  appraisers  on 
the  fifteenth  of  July,  1813,  the  other  appraiser  being 
then  dead.  The  facts  set  forth  in  the  petition  for  sale, 
were  not  verified  by  oath  or  affirmation,  nor  was  the 
account  of  the  debts  so  verified  when  the  petition  was 
presented. 

On  the  sixteenth  of  July,  1813,  an  order  of  sale 
was  made  by  the  Orphan's  Court  pursuant  to  the 
prayer  of  the  petition,  the  usual  and  regular  noti- 
ces of  sale  were  given,  and  on  the  twentieth  of  Au- 
gust following,  the  administrators  reported  that  they 
had  sold  the  lots.  This  sale  was  confirmed,  but  af- 
terwards set  aside  by  the  Orphan's  Court.  A  second 
order  of  sale  having  been  made,  the  administrators 
reported  on  the  fifteenth  of  October,  1813,  that  they 
had  sold  the  property  to  Robert  Kennedy  and  Conrad 
Carpenter.  The  sale  was  confirmed  and  a  deed 
made  to  the  purchasers  accordingly.  By  sundry 
conveyances  from  Carpenter,  the  whole  property  was 
vested  in  the  plaintiff. 

Subsequently  to  these  proceedings  the  following 
entries  were  made  on  the  records  of  the  Orphan's 
Court. 

Kk 

*  ~»      "*' 


258  SALE  OF  REAL  ESTATE.  [Bo6K  m. 

Nineteenth  March,  1822,  on  motion  of  John  Pur- 
don,  Esq.  ordered  by  the  court  that  the  record  of  the 
proceedings  to  the  sale  of  the  real  estate  of  John  C. 
Wells,  deceased,  be  amended  by  adding  to  the  exhib- 
ited account  of  all  the  intestate's  debts,  filed  by  the 
administrators  of  the  said  John  C.  Wells,  the  affirma- 
tion of  William  Levis  one  of  the  said  administrators,  as 
taken  in  court  by  the  said  William  Levis,  at  the  time 
of  exhibiting  the  said  account  and  before  any  order  of 
sale  made  thereon  "  that  the  same  is  a  just  and  true 
account  of  all  the  intestate's  debts  which  had  then 
.  come  to  the  knowledge  of  the  said  administrators.3' 

Pursuant  to  this  order  the  said  William  Levis,  on 
the  second  of  April,  1822,  in  open  court,  made  and 
subscribed  the  following  affirmation,  which  was  enter- 
ed of  record,  and  also  on  the  said  account,  "  William 
Levis  the  administrator  above  named,  on  his  solemn 
affirmation  to  him  administered,  says,  that  at  the  time 
of  exhibiting,  the  foregoing  account  of  the  intestate 
John  C.  Wells'  debts  to  the  Orphan's  Court,  and  be- 
fore any  allowance  or  order  was  made  by  the  said 
court  for  the  sale  of  the  said  intestate's  lands;  he  did 
in  open  court  make  the  above  mentioned  affirmation 
before  the  said  Orphan's  Court,  viz:  "  William  Levis 
(late  William  Levis,  Jr.)  one  of  the  administrators  of 
John  C.  Wells,  deceased,  being  affirmed,  according  to 
law,  on  his  solemn  affirmation,  saith,  that  the  fore- 
going is  a  just  and  true  account  of  all  the  intes- 
tate's debts,  which  have  come  to  the  knowledge  of 
the  said  administrator.  And  he  doth  further  say, 
that  the  foregoing  account  is  a  just  and  true  account  of 
all  the  intestate's  debts  which  had  then  come,  or  at 


CHAP,  v.]  SALE  OF  REAL  ESTATE.  259 

any  time  since  have  come,  to  the  knowledge  of  the 
said  administrator." 

The  question  for  the  opinion  of  the  court,  on  the 
case  thus  stated,  was,  whether  the  foregoing  proceed- 
ings so  vested  in  the  said  Robert  Kennedy  the  title  of 
the  said  John  C.  Wells  to  the  lots  in  question,  as  that 
the  said  John  G.  Wachsmuth,  should,  under  his  said 
contract  with  the  plaintiff,  have  completed  his  pur- 
chase. 

The  case  was  argued  by  Purdon  for  the  plaintiff, 
and  Scott  for  the  defendant. 

For  the  defendant  it  was  objected,  that  the  title  of 
the  plaintiff  was  not  good,  inasmuch  as  the  requisites 
of  the  law  respecting  sales  of  land  by  administrators 
under  an  order  of  the  Orphan's  Court  had  not  been 
complied  with.  The  act  of  nineteenth  April,  1794, 
section  eight,  Purd.  Dig.  292,  provides,  that  no  Or- 
phan's Court  shall  allow  or  order  any  intestate's  lands 
or  tenements  to  be  sold,  before  the  administrator  or 
administrators  requesting  the  same,  shall  exhibit  a 
true  and  perfect  inventory  of  all  the  intestate's  per- 
sonal estate  whatsoever,  as  also  a  just  and  true  account 
upon  his,  her,  or  their  solemn  oath  or  affirmation  of 
all  the  intestate's  debts,  which  shall  be  then  come  to 
his,  her,  or  their  knowledge;  yet,  no  such  account 
was  filed  before  the  order  of  sale  in  the  present  case 
was  granted.  The  Orphan's  Court  is  a  court  of  limi- 
ted jurisdiction,  and  must  conform  to  the  directions 
of  the  act  in  its  proceedings,  or  they  are  liable  to  be 
examined  and  set  aside  in  a  collateral  suit.  In  Mes~ 
•singer  v.  Kintner,  4  Binn.  97,  it  was  held,  that  an  un- 


260  SALE  OF  REAL  ESTATE.  [BOOK  in. 

authorized  decree  of  an  Orphan's  Court  for  the  sale 
of  lands,  will  not  stand  until  reversed  in  a  regular 
course  of  appeal,  but  may  be  questioned  in  a  colla- 
teral suit,  by  or  against  a  person,  claiming  under  that 
decree.     If  the  decree  in  the  present  case  was  unau- 
thorized, the  objection  may  at  any  time  hereafter,  be 
taken  in  a  suit  for  the  land  by  the  defendant,  and  the 
land  wholly  lost.  The  amendment  allowed  by  the  Orr 
phan's  Court,  does  not  remove  the  objection.     Sup- 
posing the  court  had  power  to  receive  the  affidavit,  it 
came  too  late:  the  act  forbids  any  order  of  sale  of  the 
lands,  unless  the  affidavit  be  filed  before  such  order 
is  made.     It  is  a  further  ground  of  objection  to  the 
title,  that  if  the  affirmation  of  Mr.  I^evis  be  considered 
correct  in  point  of  time,  it  is  the  affirmation  of  only 
one  of  the  administrators;  whereas  the  spirit  of  the 
act  of  1794  is,  that  where  Jthere  are  several  adminis- 
trators who  request  an  order  of  sale,  all  should  join 
in  the  oath  or  affirmation. 

For  the  plaintiff  it  was  answered,  that  it  substan- 
tially appeared  by  the  record,  that  there  was  not  suf- 
ficient personal  estate  to  pay  the  debts,  and  that  was 
sufficient.  Great  allowances  are  always  made  for 
want  of  form  in  cases  of  sales  by  order  of  the  Or- 
phan's Court.  Snyder  lessee  v.  Snyder,  6  Binn.  497. 
Bickle  v.  Young,  3  Serg.  and  Rawle,  235.  Price  v. 
Johnson,  4  Yeates,  528.  2  Yeates,  1 18.  Huckle  v. 
Phillips,  2  Serg.  and  Rawle  7.  But  if  a  defect  ever 
existed  in  the  record,  it  has  been  completely  cured 
by  the  order  of  the  Orphan's  Court  in  1822,  which 
contains  every  thing  required  by  the  act.  That  or- 
der allows  the  proceedings  to  be  amended,  by  add- 


QHAP.  v.]  SALE  OF  REAL  ESTATE.  261 

ing  the  requisite  affidavit  to  the  exhibited  account. 
The  account  so  amended  is  then  the  record:  and  the 
truth  of  the  records  of  the  Orphan's  Court,  concerning 
matters  within  their  jurisdiction,  cannot  be  disputed. 
Selin  v.  Snyder,  7  Serg.  and  Rawle,  172.  As  to  the 
objection,  that  only  one  administrator  has  made  the 
affirmation,  that,  was  overruled  by  this  court  in  the 
case  of  Snyder  s  lessee  v.  Snyder,  6  Binn.  497. 

Per  Cur.  The  question  in  this  case,  is,  whether  a 
sale  of  the  real  estate  of  John  C.  Wells,  Esq.  deceased, 
made  by  order  of  the  Orphan's  Court  of  Philadelphia, 
was  valid.  It  is  contended,  on  the  part  of  the  defend- 
ant, that  the  Orphan's  Court  had  no  power  to  make 
the  order  for  sale,  because  the  administrators  of  John 
C.  Wells  did  not,  previous  to  the  said  order,  exhibit 
an  account  upon  oath,  of  all  the  intestate's  debts  which 
had  then  come  to  their  knowledge,  as  is  required,  by 
the  act  of  nineteenth  April,  1794,  section  twentieth. 
On  inspecting  the  record  of  the  Orphan's  Court,  we 
find,  that  on  the  fourteenth  of  January,  1813,  the  ad- 
ministrators of  Wells,  (  Win.  Levis  and  Mary  Wells,} 
petitioned  for  an  order  of  sale  of  the  real  estate,  which 
was  granted,  and  in  pursuance  thereof  the  estate  was 
sold,  and  the  sale  confirmed  by  the  court.  At  that 
time,  no  account  of  the  debts  of  the  intestate,  verified 
by  the  oath  of  the  administrator,  appeared  upon  the 
record.  But  on  the  nineteenth  of  March,  1822,  the 
Orphan's  Court  made  an  order,  "  that  th.a,  record 
should  be  amended,  by  adding  to  the  account  exhibit- 
ed by  the  administrators  of  John  C.  Wells,  of  all  the 
intestate's  debts,  the  affirmation  of  Wm.  Levis,  one  of 
the  administrators,  as  taken  in  court  by  the  said  Levis, 


SALE  OF  REAL  ESTATE.  [BOOK  in. 

at  the  time  of  exhibiting  the  said  account,  and  before 
any  order  of  sale,  that  the  same  is  a  just  and  true  ac- 
count of  all  the  intestate's  debts,  which  had  then  come 
to  the  knowledge  oj  the  said  administrator" — It  cannot 
be  doubted,  that  the  court  had  power  to  order  this 
amendment.  The  affirmation  ought  to  have  been 
recorded,  at  the  time  it  was  made,  and  the  not  enter- 
ing it  of  record,  was  no  more  than  a  clerical  omission. 
So  long  ago  as  the  year  1650,  an  amendment  was 
permitted,  by  causing  judgment  to  be  entered  on  a 
verdict,  which  the  prothonotary  had  omitted, — and 
this  too  after  an  execution  had  been  issued,  and  ex- 
ception taken  to  the  proceeding,  (a)  In  considering 
the  record  before  us,  therefore,  we  must  now  take  it, 
that  the  affirmation  of  Levis  was  made  previous  to  the 
order  of  sale.  Thus  all  is  right,  for  the  record  cannot 
be  contradicted.  The  orders,  or  decrees,  of  the  Or- 
phan's Court,  \vhere  it  exceeds  its  jurisdiction,  may 
be  controverted.  But  where  it  is  acting  within  its 
jurisdiction,  the  truth  of  what  is  asserted  on  record, 
cannot  be  denied.  This  was  decided  in  the  case  of 
Selin  and  others  v.  Snyder  (7  S.  &  R.  172.)  But  it 
is  objected,  that  granting  the  affirmation  in  this  case, 
to  have  been  made  by  Wm.  Levis,  according  to  the 
amended  record,  still  it  is  defective,  for  want  of  the 
oath  or  affirmation  of  Mary  Wells,  the  co-administra- 
trix. The  very  same  objection  was  taken,  and  over- 
ruled by  this  court,  in  the  lessee  of  Snyder  v.  Snyder, 
6  Bin.  497.  It  is  the  opinion  of  the  court,  therefore, 
that  the  proceedings  in  the  Orphan's  Court  were  ac- 
cording to  law,  and  the  sale  of  the  real  estate  of  John 

(a)  Style's  Rep.  229. 


CHAP,  vi.]  OF  DEVASTAVIT.  263 

C.  Wells,  was  valid.    Judgment  is  to  be  entered  for 
the  plaintiff." 

In  ejectment,  evidence  may  be  given  of  a  sale  by 
order  of  the  Orphan's  Court,  on  the  petition  of  an 
administrator,  without  producing  the  letters  of  admin- 
istration if  their  loss  be  shewn,  (a)  But  before  the 
proceedings  of  the  court  on  such  petition  can  be  given 
in  evidence,  title  must  be  proven  in  the  intestate,  (b) 

If  there  be  any  surplus  of  the  proceeds  of  lands 
sold  by  order  of  the  Orphan's  Court  for  the  payment 
of  debts  of  an  intestate,  it  is  distributable  as  real  es- 
tate, (c)  A  the  widow  of  B,  to  whom  a  part  of  the 
proceeds  of  the  sale  of  real  estate  sold  by  order  of 
the  Orphan's  Court,  had  been  decreed  by  said  court, 
intermarried  with  C,  having  children  by  her  first 
husband  B.  A  and  C  both  dying,  the  children  of 
C,  claimed  the  money  as  personal  property  vested  in 
him  by  the  intermarriage  absolutely;  the  children  of 
B  insisted  that  they  alone  were  entitled  thereto,  as  it 
proceeded  from  the  sale  of  lands  decreed  for  special 
purposes,  and  that  the  surplus  should  return  to  the 
heirs  of  B. 

The  Court  without  argument  declared  their  unani- 
mous opinion,  that  this  money  must  be  taken  as  real 
property,  and  was  subject  to  distribution  as  such. 


CHAPTER  VI. 

SECTION  I. 

Of  Devastavit. 
If  the  executor  or  administrator-  embezzle  or  mis- 

(a)  Buckle  r.  Phillips,  2  Sergt.  and         and  R.  473. 

R.  4.  (c)  Diller  v.  Young.  2  Yeates,  261. 

(6)  M' Donald  v.  Campbell,  2  Sergt.        act  1794,  Dec.  20,  3  Sm.  L.  151. 


264  OF    DEVASTAV1T.  [BOOK  in. 

apply  the  assets,  or  if  they  suffer  any  loss  or  deterio- 
ration by  his  negligence,  he  is  guilty  of  a  devastavit 
and  is  personally  responsible,  (a) 

A  devastavit  may  arise  either  by  acts  committed 
or  omitted. 

By  commission  as  giving  away,  embezzling  or  con- 
suming the  property;  (6)  by  extravagant  expenses 
at  the  funeral;  (c)  by  the  payment  of  debts  out  of 
their  legal  order,  to  the  prejudice  of  such  as  are  su- 
perior, or  by  assenting  to,  or  payment  of,  a  legacy, 
when  the  fund  is  insufficient  for  the  payment  of 
creditors;  (d)  by  releasing  or  cancelling  a  bond,  or 
delivery  of  it  to  the  obligor  without  payment;  (e)  or 
by  the  release  of  a  cause  of  action  accrued  in  the 
right  of  the  testator;  (/)  by  taking  an  obligation  in 
his  own  name  for  a  debt  due  by  simple  contract,  to 
his  decedent;  (g)  by  commencing  an  action  in  which 
he  has  a  right  to  recover,  and  afterwards  agreeing 
with  the  defendant  to  receive  a  specific  sum  -at  a  fu- 
ture day  as  a  compensation,  and  the  party  fail  to  pay 
it.  (/i) 

By  omission,  if  having  assets  he  delay  the  payment 
of  a  debt  and  suffer  interest  and  costs  to  accrue 
thereon,  (i)  if  he  lose  any  of  the  decedent's  chattels; 
(k)  if  he  neglect  to  bring  suit  on  bond,  he  shall  be 
charged  with  the  amount;  (I)  if  he  delay  to  bring 
suit  for  any  other  debt,  by  which  the  creditor  is  ena- 

(o)  Toll.  Ex,  424.  (A)  2  Lev.  199.  2  Jon.  8H.  S.  C.    1 

(6)  Ibid.  Vcru.474. 

(c)  Ibid.  2  Bl.  Com.  508.  (i)  Callaghan  v.  Hall,  1  Sergt.  $  R. 

(rf)Off.  of  Ex.  158.  241. 

(e)  Ib.  159.  (k)  2  Vern.  299. 

(/)  Off.  of  Ex.  71.  159.  (/)  2  Bro.Ch.  Rep  156. 

(§•)  Yelv.  10.  2  Lev.  189. 


CHAP,  iv.]  OF  DEVASTAVIT.  265 

bled  to  plead  the  statute  of  limitation;  (a)  if  he  ap- 
point an  iniquitous  agent  and  he  embezzle  the  goods 
of  the  decedent;  (b)  if  he  neglect  to  put  out  money  at 
interest-,  (c)  if  he  permit  rent  to  run  in  arrears,  and 
it  is  lost  through  his  negligence;  (d)  if  he  delay  dispo- 
sing of  the  testator's  goods,  by  which  they  are  injured; 
(e)  if  he  neglect  to  bring  an  action  against  him  who 
takes  the  goods  of  the  testator  from  his  possession;  (/) 
if  he  lend  money  on  personal  security,  (g) 

If  he  lay  out  the  assets  on  private  securities  all  the 
benefit  made  thereby  shall  accrue  to  the  estate,  but 
he  shall  answer  all  the  deficiency,  (h)  If  he  sell  the 
decedent's  goods  at  under  value,  though  it  be  an  ap- 
praised value,  he  shall  be  answerable,  (i) 

If,  without  any  imputation  on  him,  the  goods  are  ta- 
ken from  his  possession,  although  he  recover  not 
such  damages  as  the  goods  were  really  worth,  he 
shall  be  responsible  for  no  more  than  he  really  re- 
covers, (fc)  If  the  goods  be  perishable  and  on  his  part 
there  have  been  neither  neglect  in  keeping  nor  de- 
lay in  selling  them,  he  shall  not  be  answerable  for 
any  injury  they  may  sustain.  (/)  If  an  executor 
merely  give  a  receipt  for  so  much  due  on  a  bond,  as 
he  in  fact  receives,  he  shall  not  be  charged  with  a 
devastavit  for  the  residue,  (wi) 

If  there  be  arrears  of  rent  on  lease,  and  on  the 
tenants  becoming  insolvent,  the  executor  release  the 

(a)  12  Mod.  573.  11  Vin.  ab.  309.  (k)  1  Cox.  Rep.  24. 1  Sergt.  and  IL 
(6)  6  Mod.  93.  24  K 

(c)  2  Fonbl.  184.  n.  p.  1  Sm.  L.  83.  (i)  Off.  Ex.  158. 

(d)  1  Madd.  Rep.  290.  (&)  6  Mod.  181. 
(e)OlT.  Ex.  158.  (/)  Ibid. 

(/)  6  Mod.  181.  (m)  Off.  Es.  159. 

(g)  Coop.  Rep.  6.  2  Cox's  Rep.  1. 

L    1 


266  OF  DEVASTAVIT.  [BOOK  in. 

arrears  and  give  him  a  sum  of  money  to  quit  posses- 
sion j  if  he  have  acted  thus  for  the  benefit  of  the  estate 
he  shall  be  allowed  both,  (a) 

An  executor  is  not  bound  to  plead  the  statute  of 
limitations  to  an  action  commenced  against  him  by  a 
creditor  of  the  decedent,  (b) 

If  the  husband  of  an  executrix  commit  a  devastamt, 
in  case  the  executorship  commenced  before  the  mar- 
riage, the  husband  and  wife  shall  be  both  chargeable. 
If  it  commenced  subsequently  to  the  marriage,  the 
husband  is  liable  alone.  If  an  executrix  commit  a  de- 
vastavit  and  afterwards  marry,  the  husband  as  well 
as  the  wife,  is  responsible  during  the  coverture,  (c) 

A  devastavit  by  one  executor  shall  not  charge  his 
companion-,  (d)  and  if  there  be  several  executors  or 
administrators,  each  shall  be  liable  only  for  what  he 
receives,  (e)  provided  he  hath  not  intentionally  or  oth- 
erwise contributed  to  the  devastavit  of  the  other.  (/) 

But  an  executor  administering,  having  once  receiv- 
ed money,  assets  of  his  testator,  cannot  discharge  him- 
self under  the  plea  of  plenc  adminislravit,  to  an  ac- 
tion, by  a  bond  creditor  of  his  testator,  by  shewing, 
that  he  paid  the  money  to  his  co-executor,  even  for 
the  purpose  of  satisfying  the  bond  creditor,  who  had 
applied  for  payment  to  such  co-executor,  if  the  co-ex- 
ecutor afterwards  misapply  the  money,  by  retaining  it 
to  satisfy  his  own  simple  contract  debt,  (g) 

But  where  one  executor  had  received  money  be- 
longing to  the  estate  of  the  testator,  and  paid  it  over 

(a)  3  P.  Wms.  38 1 .  358,  359. 

(6)  Toll.  Ex.  429.  1  Kq.  Ca.  ab.  305.  (d]  Off.  Ex.  161,  162,  Toll.  Ex.  430 

Castleton  v.  Fan&haw,  Prec-  Ch.  (e)  Barnes  440. 

100.  (f)  Toll.  Ex.  430. 

(c)  2  Bro.  Ch.  Rep.  323.  Toll.  Ex.  (g]  1  East.  241. 


CHAP.  iv. J  OF  DEVASTAVIT.  267 

to  his  co-executor,  who  became  insolvent  it  was  held 
that  though  he  would  be  chargeable,  if  there  were 
creditors  and  a  deficiency  of  assets  to  satisfy  them, 
yet  that  he  was  not  answerable  to  the  legatees,  (a) 

Formerly  the  executor  of  an  executor  could  not  be 
charged  by  a  devastavit  committed  by  the  first  execu- 
tor, for  it  was  held  a  twt^  and  therefore  to  die  with  the 
party.  But  by  the  stat.  4  and  5,  W.  and  M.  c.  24, 
s.  12,  an  executor  of  an  executor  shall  be  liable  on 
a  devastavit  committed  by  his  testator  in  the  same 
manner  as  he  would  have  been  if  living,  (b) 

Although  an  executor  have  no  notice  of  a  claim, 
yet  the  exhausting  of  assets  even  after  the  expiration 
of  a  year,  in  the  payment  of  legacies,  or  distributive 
shares  in  prejudice  of  a  creditor  (without  requiring 
refunding  bonds,)  would  be  a  devastavit.  (c) 

(a)  Brown's  Appeal.  1  Dall.  311.  (c)  Swearingen  v.  Pendleton,  4 
(6)  Toll.  Ex.  430.  Serg.  et  R.  394. 


THE  LAW  OF  DECEDENTS. 


BOOK  IV. 

OF  REMEDIES  FOR,  AND  AGAINST  EXECUTORS  AND 
ADMINISTRATORS. 


CHAPTER  I. 

OF  THE  CAUSES  FOR  WHICH  AN  EXECUTOR  OR  ADMINIS- 
TRATOR MAY  MAINTAIN  SUIT OF  SUITS  BY  EXECU- 
TOR OR  ADMINISTRATOR. 

SECTION  I. 

Of  the  causes  for  which  an  Executor  or  Administrator 
may  maintain  suit. 

The  executor  or  administrator  represents  the  tes- 
tator in  respect  to  all  his  personal  contracts  and  may 
maintain  an  action,  to  enforce  them,  and  for  all  inju- 
ries relating  to  his  personal  estate,  such  as  might 
have  been  maintained  by  the  decedent  himself,  (a) 

He  may  have  an  action  for  breach  of  contract  re- 
lating to  the  realty,  if  broken  in  the  life  time  of  the 
decedent;  (6)  and  the  executor  or  administrator  shall 
recover  damages  therein,  though  he  be  not  expressly 
named;  and  an  action  will  lie  for  him  for  cutting  and 

(a)  Toll.  ex.  431.  3  Bac.  ab.  50,  91.  (6)  Cora.  Dig.  admin.  B  13.  Cove- 
Cro.  Eliz.  377.  Latch.  167.  Roll.  nant  B  1.  3  Bac.  ab.  91.  2  Leo. 
ab.  912.  Off.  Ex.  65.  26.  Vent.  175.  Off.  Ex.65. 


CHAP,  i.]  SUIT  BY  EXECUTORS.  269 

carrying  away  corn,  though  growing  on  the  freehold 
lands  of  his  decedent,  (a) 

He  may  have  an  action  against  the  sheriff  for  not 
returning  his  writ  and  paying  money  levied  on  a  fieri 
facias;  (6)  or  for  a  false  return,  stating  that  he  had 
not  levied  the  debt,  when  in  truth  he  had.  (c)  He 
may  also  have  an  action  against  the  sheriff,  for  the 
escape  of  a  party  in  execution  on  a  judgment  obtain- 
ed by  the  decedent,  even  where  the  escape  happen- 
ed in  the  decedent's  life  time,  (d) 

The  executor  or  administrator,  or  his  assignee  may 
bring  ejectment  on  a  mortgage  to  his  decedent,  (e) 

And  as  executor  or  administrator,  he  may  have 
writ  of  error.  (/) 

But  an  executor  cannot  bring  suit  for  an  injury  to 
the  person  of  his  testator;  as  for  battery,  imprison- 
ment or  the  like;  nor  for  a  breach  of  promise  of  mar- 
riage, where  no  special  damage  is  alleged:  (g)  nor 
for  a  prejudice  to  the  freehold,  simply,  of  his  dece- 
dent. (K) 

SECTION  II. 

Of  suits  by  Executors  or  Administrators. 
An  executor  may  hold  a  defendant  to  bail  without 
swearing  positively  to  a  subsisting  debt;  an  affidavit 
of  his  belief  of  the  existence  of  the  debt  is  sufficient, 
for  the  nature  of  his  situation  will  not  admit  of  his  be- 
ing more  positive,  (i) 

(a)  1  Vent.  187.  (/)  Latch.  167. 

(6)  IRoll.  ab.  913.  Cro.  Car.  297.  (g)  2  Maul  and  Sel.  408.    Toller 

(c)  4  Mod.  404.  1  Salk.  12.  Ex.  436. 

((/)  Com.  Di£.  Admin,  B  13.  Cro.  (A)  Off.  Ex.  67,  68. 

far.  297.  Dyer  322.  (?)  Com.   Dig.  pleader,  2  D.   1.  3 

(e)  Less,  of  Simpson  v.  Ammons.  1  Leon.  212. 

Binn.  176. 


270  SUIT  BY  EXECUTORS.  [BOOK  iv. 

If  there  be  several  executors  or  administrators, 
they  ought  all  to  join,  though  some  be  under  the  age 
of  seventeen  years,  or  have  not  proved  the  will,  or 
have  even  refused  before  the  register,  (a)  But  ad- 
vantage can  be  taken  of  the  nonjoinder  of  all  the  exe- 
cutors or  administrators,  only  by  pleading  in  abate- 
ment, after  oyer  of  the  probate  or  letters  of  administra- 
tion, that  the  other  executor  or  administrator  therein- 
mentioned  is  alive  and  not  joined  in  the  action.  (6) 

If  one  or  more  of  the  executors  or  administrators 
die,  the  right  devolves  to  the  survivor  or  survivors: 
(c)  and  if  all  die,  to  the  executor  de  bonis  non. 

Executors  or  administrators  may  be  substituted 
for  their  decedents  in  actions  already  commenced, 
under  the  eighth  section  of  the  act  of  thirteenth  April, 
1791,  (d)  which  provides  that, 

"  Where  any  suit  shall  be  depending  in  any  court 
of  this  commonwealth,  and  either  of  the  parties  shall 
die  before  final  judgment,  the  executor  or  adminis- 
trator of  such  deceased,  who  was  plaintiff,  petitioner, 
or  defendant,  in  case  the  cause  of  action  doth  by  law 
survive,  shall  have  full  power  to  prosecute  or  defend 
such  action  until  final  judgment,  and  the  defendant 
or  defendants  are  hereby  obliged  to  answer  thereto 
accordingly;  and  the  court,  before  whom  such  cause 
may  be  depending,  is  hereby  empowered  and  direct- 
ed to  hear  and  determine  the  same,  and  to  render 
judgment  for  or  against  the  executor  or  administra- 
tor, as  the  case  may  require;  and  if  such  executor 
or  administrator  having  been  duly  served  with  a  scire 

(a)  9  Co.  37.  f*.  T.  R.  558.  1  Saund.     (c)  3  Bac.  ab.  56.  2  Vern.  514.  11 

291.  g.  2  Saund.  209,  212.  Vin.  ab.  69. 

(6)  1  Saund.  291  g.  1  Chilt.  P.  14.       (<*)  3  Sm.  L.  30. 


OHAP.  i.J  SUIT  BY  EXECUTORS.  071 

facias  or  citation  from  the  office  of  the  clerk  of  the 
court  where  such  suit  is  depending,  sixty  days  be- 
fore the  meeting  thereof,  shall  neglect  or  refuse  to 
become  a  party  to  the  suit,  the  court  may  render 
judgment  against  the  estate  of  the  deceased  party,  in 
the  same  manner,  as  if  the  executor  or  administrator 
had  voluntarily  made  himself  a  party  to  the  suit;  and 
the  executor  or  administrator  who  shall  become  a 
party  as  aforesaid,  shall,  upon  motion  to  the  court 
where  the  suit  is  depending,  be  entitled  to  a  continu- 
ance of  the  same  until  the  next  term.  Where  the 
suit  has  been  continued  under  this  act  and  no  decla- 
ration was  filed  in  the  plaintiff's  life  time,  the  decla- 
ration must  be  filed  in  the  name  of  the  original  party, 
as  it  refers  to  the  first  term  when  the  suit  was  com- 
menced, (a) 

The  executor  may  commence  actions  in  right  of 
the  testator,  although  he  cannot  declare  before  pro- 
bate. (6) 

And  in  an  action  at  the  suit  of  an  executor  or  ad- 
ministrator, a  projert  of  the  letters  testamentary  or  of 
administration  should  be  made;  (c)  but  the  omission 
of  profert  is  now  aided,  unless  the  defendant  demur 
specially  for  the  defect,  (d) 

When  the  testator  became  surety  for  one  by  bond, 
upon  which  a  suit  was  brought  against  his  executor, 
as  administrator,  and  the  executor  confessed  judg- 
ment and  payed  the  debt,  he  may  recover  the  same 

(a)  Clow  et  al.  v.  Brown,  1  Yeates,  (c)  Bac.  ab.  Tit    Ex.  Chit.  Plead. 

324.  400. 

(6)  1 1  Vin.  ab.  202.  Com.  Dig.  Ad-  (d)  Ibid. 

min.  B  9.  Off.  Ex,  36. 


SUIT  BY  EXECUTORS.  [BOOK  iv. 

against  the  principal,  without  naming  himself  in  his 
representative  character,  (a) 

When  an  acknowledgment  or  promise  has  been 
made  by,  or  to  an  executor,  it  should  be  declared 
upon  accordingly,  in  a  special  count,  (b) 

In  an  action  by  an  executor  or  administrator,  the 
count  may  conclude  "  to  the  damage"  of  the  plaintiff, 
without  saying  as  executor,  (c) 

A  declaration  in  an  action  by  an  administrator,  cum 
testamento  annexo,  during  the  absence  of  the  execu- 
tor, must  aver  that  the  executor  continued  to  be  ab- 
sent at  the  time  of  bringing  the  action,  and  the  omis- 
sion of  such  averment  will  be  fatal,  (d)  If  the  de- 
fendant in  such  case  put  in  a  plea  to  the  merits,  the 
error  is  cured;  but  it  is  not  cured  by  a  judgment  for 
want  of  an  affidavit  of  defence,  nor  by  the  act  of 
twenty-first  of  March,  1806.  (e) 

It  is  not  necessary,  under  the  pleas  of  non  assump- 
sit  and  payment  for  the  plaintiff's  executors  to  pro- 
duce the  letters  testamentary.  (/)  So  in  an  action 
by  an  executor  or  administrator,  on  a  cause  of  action 
arising  in  the  life  time  of  the  deceased,  where  the 
defendant  pleads  the  general  issue,  the  plaintiff  need 
not  produce  the  probate  or  letters  of  administration: 
nor  will  the  defendant  be  permitted  to  show,  that 
they  do  not  exist,  (g) 

Where  the  plaintiff  dies  after  final  judgment  and 
before  execution,  his  executor  or  administrator  shall 

(a)  O'Brian  v.  Coskrey,  4  Yeates,  (e)  Lewis  v.  Ewing,  3  Serg.  &  R. 
105.  44. 

(b)  Jones  v.  Moore,  5  Binn.  573.  (/)  M'Kim  et  al.  v.  Riddle,  2  Dall. 

(c)  Martin  v.  Smith.  5  Binn.  16.  100. 

(d)  Lewis  v.  Evving,  3  Serg.  &  R.     (s-)  Axers  v.  Mussleman,  2  Browne, 
44.  "  115. 


CHAP,  i.]  SUIT   BY  EXECUTORS.  273 

sue  execution  by  scire  facias,  (a)  If  after  a  fieri  fa- 
cias sued  out,  the  plaintiff  die,  the  sheriff  deriving 
authority  from  the  writ  may  levy  the  mone}%  and  pay 
it  to  the  executor;  or  in  case  the  plaintiff  died  intes- 
tate it  shall  be  brought  into  court,  and  remain  there 
until  administration  be  committed,  when  the  adminis- 
trator on  producing  the  grant,  shall  receive  it.  (b)  So 
if  under  a  fieri  facias,  the  goods  are  seized  and  the 
plaintiff  die  before  sale,  and  then  the  goods  are  sold, 
the  executor  or  administrator  shall  have  the  money; 
nor  shall  it  be  a  sufficient  return  to  state  the  plaintiff 
is  dead;  for  that  is  no  abatement  of  the  writ,  (c) 

At  common  law  the  death  of  the  plaintiff  at  any 
time  before  final  judgment  abated  the  suit;  but  by 
stat.  .17,  car.  2,  c.  8,  (d)  if  either  party  die  be- 
tween verdict  and  judgment,  his  death  shall  not  be 
alleged  for  error,  so  the  judgment  be  entered  within 
two  terms  after  the  verdict.  The  judgment  on  this 
statute  is  entered  as  if  the  part}'  were  alive,  (e)  and 
it  must  be  entered  or  at  least  signed,  within  two 
terms  after  the  verdict.  (/)  But  there  must  be  a 
scire  facias  to  revive  it  before  execution  can  be  taken 
out-,  (g)  and  such  scire  facias  pursuing  the  form  of  the 
judgment,  should  be  general,  as  on  a  judgment  re- 
covered by  or  against  the  party  himself,  (/i) 

And  by  stat.  8  and  9,  Wm  3,  c.  11,  s.  6,  if  the 
plaintiff  die  after  interlocutory,  and  before  final  judg- 
ment the  action  shall  not  abate,  if  such  action  might 

(a)  Tidd's  Prac/1056.  (e]  Salk.  42^ 

(&)  6  Mod.  27.  Tidd's  Prac.  842.  (/)  1  Sid.  385.  Beames  201. 

(c)  6  Mod.  297.  Cro.  Ca.  459.  1  Sid.  («•)   1  Wils.  30>>. 

29.  (A)  2  Ld.  Ravm. 
(rf)  Rob.  Dig.  369. 


M  m 


274  SUIT  BY  EXECUTORS.  [BOOK  iv. 

have  originally  been  sued  by  his  executor  or  admi- 
nistrator; but  the  executor  or  administrator  may  have 
a  scire  facias  against  the  defendant;  or  if  he  die  after 
such  interlocutory  judgment  against  his  executor  or 
administrator.  And  if  the  defendant,  his  executor 
or  administrator,  appear,  and  show  no  cause  to  arrest 
the  final  judgment,  or  on  a  scire  fed  or  two  nihils 
make  default,  a  writ  of  inquiry  shall  go,  and  being 
executed  and  returned,  final  judgment  shall  be  given 
against  the  defendant,  or  against  his  executor  or  ad- 
ministrator. This  statute  has  been  held  not  to  ex- 
tend to  cases  where  the  party  dies  before  interlocu- 
tory judgment,  although  it  be  after  the  expiration  of 
the  rule  to  plead,  (a) 

Where  either  party  dies  after  interlocutory  judg- 
ment, and  before  the  execution  of  the  writ  of  inquiry, 
the  scire  facias  on  this  statute  ought  to  be  for  the  de- 
fendant, or  his  executor  or  administrator  to  shew  cause 
why  the  damages  should  not  be  assessed  and  recover- 
ed against  him,  (b)  and  to  hear  the  judgment  of  the 
court  thereupon,  (c)  But  where  the  death  happens 
after  the  writ  of  inquiry  is  executed,  and  before  the 
return,  the  scire  facias  must  be  to  shew  cause  why 
the  damages  assessed  by  the  jury  should  not  be  ad- 
judged to  the  plaintiff,  or  his  executor  or  administra- 
tor, (d) 

The  judgment  on  this  statute  is  not  entered  for  or 
against  the  party  himself,  as  on  the  stat.  1 7,  Car.  2,  but 
for  or  against  his  executor  or  administrator,  (e)  And 
where  the  defendant  dies  after  interlocutory  and  be- 

(«)  Tidd's  Prac.  105f>.  (d)  Toll.  Ex.  444. 

(6)  Lib.  Entr.  6-11.  (e)  1  Salk.  42. 

O)6  Mod.  141. 


GHAP.  i.]  SUIT  BY  EXECUTORS. 

fore  final  judgment,  two  writs  of  scire  facias  must  be 
sued  out,  before  he  can  have  execution:  and  before 
the  final  judgment  is  signed  in  order  to  make  the  ex- 
ecutor or  administrator  a  party  to  the  record-,  the  other 
after  final  judgment  is  signed,  in  order  to  give  him 
an  opportunity  of  pleading  no  assets,  or  any  other 
matter  of  defence;  for  it  were  unreasonable  that  the 
situation  of  the  executor  or  administrator  should  be 
worse  where  the  party  deceased  died  before  the 
final  judgment  was  signed,  than  it  would  have  been? 
had  his  death  been  subsequent,  (a) 

An  infant  at  the  age  of  seventeen  being  capable  of 
taking  out  probate,  may  maintain  an  action  as  execu- 
tor-, but  during  his  minority  he  must  sue  by  guardian 
or  prochein  amy\  and  cannot  sue  by  attorney.  (&) 

If  A  and  B  be  appointed  executors,  and  A  refuse 
to  join  in  such  action,  B  may  commence  the  action  in 
the  names  of  both:  then  on  summoning  A,  there  shall 
be  judgment  of  severance-,  that  is  to  say  that  B  shall 
sue  alone;  or  on  A's  default  on  the  summons  there 
shall  be  the  same  judgment,  and  B  may  then  proceed 
in  the  action,  and  recover  in  his  own  name  only; 
otherwise  a  co-executor  by  collusion  with  the  debtor 
might  prevent  his  being  sued  for  the  debt,  (e)  By 
the  death  of  the  party  severed,  the  writ  shall  not 
abate,  (d)  Nor  if  he  live  till  judgment,  can  he  sue  out 
execution,  because  the  recovery  is  in  the  name  of 
the  other  executor  alone,  (e) 

By  the  stat.  25,  E.  3.  c.  5,  the  executor  of  an  ex- 

(a)  Toll.  Ex.  444  (d)  Cm.  Eli/,.  652.  Co.  Litt.  139. 

(6)  Toll.  Ex.  445.  (e}  Off.  Ex.  105-6. 

(r)Off.  Ex.  93,  99.  Toll.  446. 


276  SUIT  BY  EXECUTORS.  [BOOK.  iv. 

ecutor,  is  put  on  the  same   footing  in  regard  to  the 
bringing  of  actions,  as  an  immediate  executor,  (a) 

If  an  administrator  darante  minoritate  bring  an  ac- 
tion and  recover,  and  then  his  administration  deter- 
mine by  the  executor's  coming  of  age,  such  executor 
may  have  a  scire  facias  on  the  judgment  (b) 

So  if  such  administrator  obtain  judgment,  he  may 
bring  scire  facias  against  the  bail*,  nor  can  they  object, 
that  the  executor  has  attained  the  age  of  twenty-one 
years-,  for  the  recognizance  is  to  the  administrator 
himself  by  name,  (c)  But  it  seems  to  be  a  question 
whether  in  such  case  he  or  the  executor  shall  sue 
out  execution  on  the  judgment,  (d) 

By  the  stat.  of  1 7,  Car.  2,*c.  8.  the  administrator  de 
bonis  non  is  entitled  to  sue  out  a  scire  facias  and  take 
out  execution  on  such  judgment.  If  the  executor  or 
administrator  die  after  suing  out  the  writ  of  execution, 
and  before  the  return  of  it,  the  administrator  de  bonis 
non  is  by  the  equity  of  that  statute  permitted  to  per- 
fect the  execution  thus  commenced,  for  the  right  is 
devolved  upon  him.  (e)  And  in  such  case,  if  the  she- 
riff return  a  seizure  of  goods  to  the  value  but  that 
they  remain  in  his  hands  for  want  of  buyers,  the  ad- 
ministrators de  bonis  non  may  sue  out  a  venditioni  ex- 
ponas,  or  a  distfmgas,  to  the  late  sheriff,  (f)  If  at  the 
time  of  the  death  of  the  executor  or  administrator  the 
money  be  levied  it  shall  be  brought  into  court,  and 
the  administrator  dc  bonis  non  on  producing  the  let- 

O)  Off  Ex.  257.  Godb.   2G2.    Rob.      (e}  1  Salk.  322.  Com.   Dig-.   Admin. 
Dig.  249.  G.    6.  Mod.  290.    2  Ld.  Raym. 

(b)  3  Bac.  ab.   18,  1  Roll.  ab.   888,         1072. 

889.  Cro.  Car.  127.  (/)  1  Salk.  3!J3.  6  Mod.  295-7-8-9, 

(c)  3  Bac.  ab.  18.  2  Lev.  37.  2  Ld.  Raym.   1074. 

(d)  2  Lev.  37. 


CHAP,  i.]  SUIT  BY  EXECUTORS.  £77 

ters  of  administration  shall  be  entitled  to  receive  it.  (a) 
But  if  an  executor  bring  a  scirc  facias  on  a  judgment 
or  recognizance,  and  getjudgment&at  he  may  obtain 
execution,  and  die  intestate,  the  administrator  de 
bonis  non  must  bring  a  scire  facias  on  the  final  judg- 
ment, and  cannot  proceed  upon  the  judgment  on  the 
scire  facias,  (b)  The  statute  extends  only  to  judgments 
after  verdict,  (c)  On  any  .other  judgment  obtained  by 
the  executor  or  administrator;  the  administrator  de 
bonis  non  shall  not  have  a  scire  facias  for  want  *of 
privity,  but  must  resort  to  his  remedy  at  common 
law,  by  an  action  of  debt  de  novo  for  the  same  de- 
mand as  administrator  to  the  first  testator  or  intestate. 
(d)  Yet  even  on  a  judgment  by  default,  if  the  execu- 
tor or  administrator  sue  out  execution  and  die  when 
the  goods  are  in  the  hands  of  the  sheriff,  and  conse- 
quently the  writ  is  completely  executed,  the  adminis- 
trator de  bonis  non,  shall  have  the  money  brought  in- 
to court,  and  on  showing  the  grant  it  shall  be  paid 
over  to  him.  (e)  Or  if  the  judgment  by  default  be  for 
goods  taken  out  of  the  executor's  or  administrator's 
own  possession  his  executor  or  administrator  shall 
have  a  scire  facias  upon  it,  and  account  for  them  to  the 
administrator  de  bonis  non.  (/) 

In  case  a  party  died  seized  of  rent,  the  common 
law  afforded  no  remedy  to  recover  the  arrears  due 
at  the  time  when  the  owner  of  such  rents  died.  It 
was  therefore  enacted  by  the  Stat.  32,  H.  8,  c.  37,  (g) 

(a)  6  Mod.  299.  300.  2  Ld.  Raym.  1 19. 

1074.  (e)  6  Mod.  299,  300. 

(fe)  Tidd'sPrac.  1058.  (/)  Yclv.  33. 

(c)  6  Mod.  296.  (§•)  Kob.  Dig.  254. 

(d)  Com.  Dig.  Admin.  G.  Toll.  Ex. 


278  SUIT  BY  EXECUTORS.  [BOOK  iv. 

that  the  executors  and  administrators  of  tenants  in  fee, 
fee  tail,  or  for  life,  of  such  rents  may  have  an  action 
of  debt  for  all  such  arrears,  or  may  distrain  for  the 
same  upon  the  lands  chargeable,  so  long  as  they  re- 
main in  the  possession  of  the  tenant  who  ought  to 
have  paid  the  rents;  or  of  any  other  person  claiming 
under  him  by  purchase^  gift,  or  descent.  The  sta- 
tute also  proviaes,  that  a  tenant  per  auter  vie,  his  exe- 
cutors and  administrates,  may  after  the  death  of  ces- 
tifi  que  vie  have  an  action  of  debt,  or  may  distrain  for 
such  arrears  incurred  in  the  life  of  cestui  que  vie. 

It  has  been  adjudged,  that  this  statute  being  re- 
medial, applies  to  the  executors  of  all  tenants  for  life  j 
not  merely  to  such  executors,  as  previously  to  the 
statute,  had  no  remedy  whatever,  but  also  to  those 
who  were  entitled  to  an  action  of  debt,  to  whom, 
therefore,  it  gives  merely  the  additional  remedy  of 
distress,  (a) 

But  the  statute  does  not  extend  to  the  executor  of 
the  gaurantee  of  a  rent  charge,  for  a  term  of  years, 
if  he  so  long  live.  (6) 

But  the  executor  of  an  executor  is  held  to  be  with- 
in this  statute,  (r) 

If  a  married  woman  be  executrix,  the  husband 
cannot  sue  in  right  of  the  testator,  without  the  wife,  (d) 

(ct)  Ilnrg.  Co.Litl.162,  b.  n.  4.    Glib.         (b)  L.  of  Ni.  Pr.  57. 
L.  of  Distress,  3    ed.    33.    I     Ld.         (c)  Off.  Ex.  258. 
Ravm.    172.    Toll.   Ex     452.    102.  (</)  Off.  Ex.  207,  208. 


OHAP.  ii.]  SUIT  AGAINST  EXECUTORS.  379 

CHAPTER  II. 

OF  REMEDIES  AGAINST  EXECUTORS  AND  ADMINISTRATORS 
FOR  CREDITORS. LEGATEES DISTRIBUTEES. 

SECTION  I. 

Of  remedies  for  creditors,  in  the  common  law  courts. 

The  real  and  personal  estates  of  decedents,  are 
both  liable  for  the  payment  of  debts. 

By  the  act  of  1 700,  Sec.  1 ,  (a)  all  lands  and  houses 
whatsoever,  shall  be  liable  to  sale  upon  judgment 
and  execution  obtained  against  the  defendant,  the 
owner,  his  heirs,  executors  or  administrators,  where 
no  sufficient  personal  estate  is  to  be  found-,  with  this 
proviso,  that  the  messuage  and  plantation  with  its  ap- 
purtenances, upon  which  the  defendant  is  chiefly 
seated,  shall  not  be  exposed  to  sale  before  the  expi- 
ration of  one  whole  year,  after  judgment  is  obtained, 
to  the  intent  that  the  defendant  or  any  other  in  his 
behalf  may  endeavour  the  redemption  of  the  same. 

The  act  of  1705,  (6)  repeats  the  provision  of  the 
act  of  1700,  with  the  restriction,  that  if  the  clear 
yearly  profits  will  pay  the  debt  in  seven  years,  the 
land  shall  be  delivered  to  the  plaintiff  upon  a  reasona- 
ble extent. 

Under  these  acts  the*  real  estates  of  debtors  have 
been  held  liable  to  sale  by  execution,  whether  they 
be  living  or  dead-,  if  living,  under  a  judgment  and 
execution  against  themselves;  if  dead,  under  a  judg- 

(n)  1  Sm.  L.  7.  (/<)   1  Sm.  L.  57. 


SUIT  AGAINST  EXECUTORS.  [BOOK  iv. 

ment  and  execution"  against  their  heirs,  executors  or 
administrators,  (a) 

But  as  many  inconveniencies  arose  from  the  debts 
of  deceased  persons,  remaining  a  lien  on  their  lands 
and  tenements,  for  an  indefinite  period  of  time  after 
their  decease;  whereby,  bona  fide  purchasers  might 
be  injured,  and  titles  become  insecure;  it  was  pro- 
vided by  act  of  fourth  of  April  1797,  "  That  no  such 
debts,  except  secured  by  mortgage,  judgment,  re- 
cognizance or  other  record,  shall  remain  a  lien  on 
said  lands  and  tenements,  longer  than  seven  years 
after  the  decease  of  such  debtor,  unless  an  action  for 
the  recovery  thereof  be  commenced  and  duly  prose- 
cuted, against  his  or  her  heirs,  executors,  or  adminis- 
trators within  the  said  period  of  seven  years,  or  a 
copy  or  particular  written  statement,  of  any  bond, 
covenant,  debtor  demand,  where  the  same  is  not  paya- 
ble within  the  said  seven  years,  shall  be  filed  within 
the  said  period,  in  the  office  of  the  prothonotary  of 
the  county  where  the  lands  lie.  Provided  always, 
that  a  debt  due  and  owing  to  a  person,  who,  at  the 
time  of  the  decease  of  such  debtor,  is  a,  feme  covert  in 
his  or  her  minority,  non  compos  mentis,  in  prison,  or 
out  of  the  limits  of  the  United  States,  shall  remain  a 
lien  upon  such  lands  and  tenements,  (notwithstanding 
the  said  term  be  expired)  until  four  years  after  dis- 
coverfure,  or  such  person  shall  have  arrived  at  the 
age  of  twenty -one  years,  be  of  sound  mind,  enlarged 
out  of  prison,  or  return  into  some  one  of  the  United 
States  of  America.  (&)" 

(«)  Graft' v.  Smith's  Ex.  I  Dall.482.     k    son,  1  Pet.  Rep.  269,  274. 

Morris  less.  v.   Smith,   1  Yeates     (b)  3  Sm.  L.  297.  Millar  v<  Stout,  2 
238.  4  Dall.  1 19.  Wilson  v.  Wil-         Browne,  294. 


«HAP.  ii.]          SUIT  AGAINST  EXECUTORS.  281. 

But  where  a  testator  gave  his  executors  power  to 
sell  so  much  of  his  remaining  lands  as  should  be  suf- 
ficient to  pay  his  debts,  and  instead  of  selling,  the  ex- 
ecutors made  an  arrangement  with  the  residuary  de- 
visees by  .which  each  devisee  was  to  have  his  part,  on 
paying  a  proportion  of  the  testator's  debts,  it  was  held 
that  the  debts  remained  a  lien  longer  than  seven 
years,  notwithstanding  this  act,  and  that  a  purchaser 
under  one  of  the  devisees  took  the  land  subject  to 
such  lien.  Such  lien  having  been  created  by  will, 
and  the  party  contending  against  it  having  had  notice 
thereof,  (a) 

The  creditor  therefore  may  sue  the  executor  or 
administrator,  and  having  obtained  judgment,  issue 
execution  against  the  lands  of  the  decedent,  whether 
in  the  hands  of  the  heir,  or  devisee  or  his  assigns,  in 
like  manner  as  if  they  had  passed  into  the  hands  of 
the  executor  or  administrator  as  chattels.  (6) 

And  to  a  scire  facias  against  an  executor  to  re- 
vive a  judgment  obtained  against  his  testator,  the  de- 
fendant cannot  plead  that  there  are  terre-tenants  whose 
lands  are  bound  by  the  judgment,  (c)  And  if  the  heir 
or  terre-tenant  of  a  debtor  be  aggrieved  by  an  execution 
upon  their  lands,  their  remedy  is  by  an  audita  querela, 
or  more  properly  by  a  rule  to  shew  cause  why  pro- 
ceedings should  not  be  staid;  and  the  court,  in  such 
case,  will  direct  an  issue  if  necessary,  (d) 

If  the  heir  or  devisee  loses  his  land  by  an  execu- 
tion for  the  decedent's  debt,  he  is  entitled  to  cdntribu- 

(a)  3  Sin.  L.  297,  Millar  v.  Hart,  (c)  Wilson  v.  Wilson,   1  Pet.  Rep. 

2  Browne,  294.  173. 

.;&)  Wilson  v.  Wilson,  1  Pet.  Rep.  (d)  Ibid.  274. 

273. 

N  n 


282  SUIT  AGAINST  EXECUTORS.  [BOOK  iv. 

tion  from  the  owners  of  the  remaining  part  of  such 
decedent's  lands,  (a)  though  such  remaining  part  be 
sold  to  bonafide  purchasers,  (fe) 

Action  lies  against  executors  in  all  cases  where 
the  cause  of  the  action  is  money  due,  or  a  contract  to 
be  performed,  gain  or  acquisition  to  the  testator,  by 
the  work  and  labour  and  property  of  another,  or  a 
promise  of  the  testator  express  or  implied.  But 
where  the  cause  of  action  is  tort  or  arises  ex  delicto 
supposed  to  be  by  force  and  against  the  public  peace, 
as  battery,  false  imprisonment,  trespass,  slander,  nui- 
sance; diverting  a  water  course,  escape,  or  on  a  penal 
statute;  in  those  and  like  cases  the  right  of  action 
does  not  survive  the  decedent,  (c) 

Consequently  no  action  where  in  form  the  declara- 
tion must  be  be  quare  clausumfregit,  vi  et  armis,  et 
contra  pacem,  or  where  the  plea  must  be,  that  the 
testator  was  not  guilty,  will  lie  against  the  executor 
or  administrator,  (rf) 

But  in  most  if  not  in  all  the  cases,  another  action 
may  be  brought,  which  will  reach  the  assets  in  the 
hands  of  the  executor,  and  remedy  the  injury  done 
by  the  decedent.  Thus  assumpsil  may  be  brought 
against  the  representative  of  a  common  carrier,  in- 
stead of  an  action  on  the  custom,  which  is  for  a  tort 
and  a  supposed  crime,  (e)  So  an  action  for  the  use 
and  hire  of  a  horse,  will  lie  against  the  executor  of 
one  who  had  taken,  and  brought  him  back,  though 
trespass  will  not.  (/)  And  though  the  executor  is 
not  chargeable  for  the  injury  done  by  his  testator,  in 

(a)  Morris's  Exrs-  v.  M'Conaughy,  (cj  Off.  Ex.  127,   128.    3  Bl.  Com. 

2  Dall.    189.   1   Yeates,   9,    189.         302. 

Guierr.  Kelly.  2  Binn.  2991  (d)  Toll.  Ex.  461. 

(6)  Croft  v.  Smith's  Exrs.  1   Dall.  (e)Ibid. 

481.  (/)Cowp.  375. 


CHAP,  ii.]          SUIT  AGAINST  EXECUTORS.  £83 

cutting  down  another  man's  trees,  yet  he  may  be 
compelled  to  answer  for  the  value  received  by  his 
testator  from  their  sale;  (a)  nor  will  trover  lie  against 
an  executor  for  conversion  by  his  testator,  the  plea 
in  that  action  being  not  guilty,  but  if  the  testator  sold 
the  property  in  his  life  time,  the  executor  may  be 
charged  in  an  action  for  money  had  and  received  by 
the  testator  to  the  plaintiff's  use.  (6) 

The  fundamental  distinction  then  is:  if  the  injury 
be  such,  that  the  offender  acquires  no  gain  to 
himself  at  the  expense  of  the  sufferer,  as  for  exam- 
ple, beating  or  imprisoning  a  man,  the  person  inju- 
red has  only  a  reparation  for  the  delictum  in  damages 
to  be  assessed  by  a  juty,  and  therefore  the  executor 
is  not  liable:  but  where  besides  the  crime,  property 
is  acquired  which  benefits  the  testator,  an  action  for 
the  value  of  the  property  will  survive  against  the 
representative,  (c) 

The  executor  is  also  liable  on  contracts  of  the  tes- 
tator, although  the  cause  of  action  accrue  not  until 
after  his  death-,  as  on  a  bond  which  becomes  due,  or 
a  note  payable  subsequently  to  that  event,  (rf) 

In  the  foregoing  cases  the  executor  shall  be  liable 
only  to  the  amount  of  the  assets;  and  the  judgment 
against  him  is  for  the  debt  or  damages  to  be  levied 
on  the  property  of  the  testator,  in  the  hands  of  the 
defendant,  if  he  have  so  much  thereof  in  his  hands  to 
to  be  administered,  (e) 

But  if  the  executor  or  administrator  have  commit- 
ted a  devastavit,  he  will  be  personally  responsible,  and 

(a)  Hambly  v.  Trott,  Cowp.  376-          (d)  Com.  Dig.  Pleader,  2  D.  2* 
(6)  Toll.  Ex.462.  (e)Tidd's  Prac,  941. 

(e)  Ibid.  Cowp.  376,  377. 


2S4  SUIT  AGAINST  EXECUTORS.  [BOOK  iv. 

out  of  his  own  goods,  for  so  much  of  the  estate  as  he 
has  wasted,  (a)  He  may  incur  this  responsibility,  by 
pleading  that,  which  he  knows  to  be  false,  and  which 
if  true  would  be  a  bar  to  the  action:  (6)  and  then 
judgment  shall  be  in  the  alternative,  de  bonis  testato- 
ris  si,  et  si  non,  de  bonis  propriis  of  the  goods  of  the 
testator,  and  if  there  be  none,  then  of  the  executor  or 
administrator,  (c) 

But  if  the  executor  plead  a  false  plea,  which  is  not 
a  bar  to  the  action,  the  judgment  for  all  but  the  costs 
is  de  bonis  testatwis.  (d),  and  for  the  costs  de  bonis 
testatoris  si,  et  si  non.,  de  bonis  propriis.  (e)  If  on  such 
judgment  aji.fa.  issue,  and  no  goods  pf  the  decedent 
are  shown,  the  sheriff  must  Jteturn  a  devastavit  on 
which  the  defendant  will  be  estopped  by  the  verdict 
from  denying.  (/) 

An  executor  or  administrator  may  make  himself 
personally  liable  by  a  promise  to  pay  a  debt,  of  the 
testator,  or  answer  damages  out  of  his  own  estate,  (g) 
There  must  be  sufficient  consideration  to  support  the 
promise:  It  must  be  alleged  and  proved  that  assets 
had  come  to  his  hands;  or  that  the  creditor  had  for- 
borne to  sue  him  in  consideration  of  his  promise  to 
pay  the  debt;  (h)  or  that  the  defendant  expressly  ad- 
mitted assets,  (t)  A  declaration  of  the  executor,  that 
the  debt  was  just,  and  should  be  paid,  as  soon  as  he 

(a)  Com.  Dig.  ad.  I.  3.  Off  ex.  157.  (/)  4  Sergt.  &  R.  396. 

Bac.  ab.  tit.  Ex.  (g)  Toll.  Ex.  463.  Hawkcs  v.  Saun- 

(fe)Off.  ofEx.  85.  Bac.  ab.  tit.  Ex.  ders-  Cowp.  289. 

I  Roll.  ab.  93.   Godolph.   98.   11  (A)  Trevaoion  F.  Howell,  Cro.   Eliz. 

Vin.  ab.  383,  J  Bl.  Rep.  400-  91.  Cowp.   293.  JReech   v.  Ken- 

fc)  Cro.  Jac.  671  2.  negal,  1  Vez.  125. 

(rf)   Swearingen    v.    Pendleton,   4  (i)  Cowper  293.    1  Sid-  89.  1  Lev. 

Sergt.  &R.  396.  71. 
(e)Tidd'sPrac.896.  Toll.  Ex.  467. 


.  ii.]  SUIT  AGAINST  EXECUTORS.  £85 

could  pay  it,  was  not  held  sufficient  to  charge  him 
with  assets:  nor  is  the  payment  of  interest  on  a  bond 
from  a  testator,  (a)  or  mere  submission  to  an  award, 
an  admission  of  assets.  (6)  But  if  the  executor  bind 
himself  by  a  personal  engagement  to  perform  the 
award;  or  if  his  submission  to  arbitration  be  a  refer- 
ence, not  only  to  the  cause  of  action,  but  also  of  the 
question,  whether  he  has  or  has  not  assets,  and  the 
arbitrator  award  the  executor  to  pay  the  amount  of 
the  plaintiff's  demand,  it  is  equivalent  to  determine 
as  between  the  parties,  that  the  executor  had  assets 
to  pay  the  debt:  but  the  award  will  not  operate  as  an 
admission  of  assets  in  any  other  litigation,  (c) 

Executors  and  administrators  shall  not  in  general 
be  held  to  bail,  for  they  are  not  personally  liable, 
but  only  in  respect  to  the  assets,  (rf)  But  they  may 
be  held  to  bail,  if  they  have  wasted  the  property,  but 
not  on  a  bare  suggestion  of  a  devastamt.  (e)  But  if  on 
a  judgment  against  an  executor,  execution  be  sued 
out  and  the  sheriff  return  a  devastavit,  in  an  action  of 
debt  upon  the  judgment  the  executor  may  be  held 
to  special  bail.  (/)  If  an  executor  personally  pro- 
mise to  pay  a  debt,  it  seems  he  may  be  holden  to 
bail,  (g) 

The  practice  is  to  issue  a  summons  against  exec- 
utors and  administrators;  but  a  capais  may  issue 
against  them  to  compel  an  appearance,  (k)  If  a  sum- 

(a)  Pearson  v.    Henry,  5  T.  R.  8.  264.  Toll.  Ex.  467. 

(6)  Hoare  v.  Mulley,  2  Yeates,  161.  (/)3Hac.  ab.    101.  Comb,  i'06-   1 

5  T.  R.  6.  Sid.  63. 

(c)  Barry  v;  Rusli,  1  T.  R.  691.  5  (g)  M'Kennie  v.  Kennie,  1  T.  Rep. 
T.  R.  7.  Wortbington  v.  Baclow,  716. 

7  T.  R.  453.  (A)  Filzsimons  v.  Solomon,  2  Binn. 

(d)  Bac.  ab.  tit.  Ex.  101.  Hargrave        444.  Penrose  v.  Pcnrose,  cited  in 
v.  Rogers,  Yelv.  53.  the  above. 

(c)  1  Crompt.  Prac.  29, 101.  Carth. 


286  SUIT  AGAINST  EXECUTORS.         [BOOK  »v. 

mons  be  issued  and  served  on  the  defendant  ten  days 
before  the  court,  the  plaintiff  may  file  a  common  ap- 
pearance for  him  and  proceed  to  judgment  by  nil  di- 
cit.  There  is  no  reason  for  distinguishing  the  case  of 
an  executor,  in  this  respect,  from  that  of  a  free- 
holder, (a) 

The  usual  judgment  recovered  against  an  execu- 
tor or  administrator,  on  verdict,  is  for  the  debt  or 
damages  and  costs  to  be  levied  of  the  goods  and  chat- 
tels of  the  decedent  in  the  hands  of  the  defendant,  if 
he  have  so  much  thereof  in  his  hands  to  be  adminis- 
tered, and  if  he  have  not,  then  the  costs  to  be  levied 
of  his  own  proper  goods.  (b)  In  such  case  the  course 
is  for  the  plaintiff  to  sue  out  a  fieri  facias  de  bonis  tes- 
tatoris,  &c.  si,  et  si  non,  de  bonis  propriis  according  to 
the  judgment;  upon  which,  the  sheriff  returns  nutla 
bona  generally,  or  nulla  bona  and  a  devastavit  by  the 
defendant,  (c)  On  the  former  return,  the  plaintiff  must 
proceed  by  scire  fieri  inquiry,  or  by  action  of  debt 
on  the  judgment  suggesting  a  devastavit,  (d)  On  the 
latter  he  may  have  execution  immediately  against 
the  defendant,  by  capias  ad  satisfaciendum,  or  fieri  fa- 
cias de  bonis  propriis.  (e) 

The  proceedings  against  executors  were  consider- 
ed with  much  attention  in  the  case  of  Swearingen  v. 
Pendleton,  and  the  following  view  of  the  law  was 
approved  by  the  supreme  court,  (f) 

"  There  are  four  several  ways  in  which  an  executor 
may  be  charged  de  bonis  propriis.  1st.  by  the  return 

(a)  2  Binn.  444.  (rf)  Tidd's  Prac.   1018.  Toll.   Ex. 

(b)  Tidd's  Prac.  941.  4  T.  R  R48.         4*70. 

(c)  Tidd's  Prac.  10,  18.  Toll.    Ex.     (e)  Tidd's  Prac.  942. 
470.  (/)  4  Binn.  393. 


CHAP.  H.]          SUIT  AGAINST  EXECUTORS.  28? 

of  the  sheriff,  as  where,  upon  an  execution  command- 
ing the  sheriff  to  levy  the  debt  de  bonis  testatoris,  he 
returns  nulla  bona  testatoris,  and  that  the  defendant 
(the  executor,)  has  wasted  the  goods.  In  such  case 
the  plain  tiff  may  sue  out  an  execution  de  bonis  propriis 
of  the  executor,  such  return  of  the  sheriff  not  being 
traversable,  the  defendant  in  case  it  were  false,  had 
no  remedy  but  a  suit  against  the  sheriff.  This  Bohun 
(Inst.  Leg.  255.)  observes,  was  the  old  mode  of  pro- 
ceeding. But  the  sheriff  being  afterwards  sued  for 
making  such  return,  as  being  false,  another  method 
was  adopted,  more  safe  indeed  for  the  sheriff,  but 
more  chargeable  and  tedious  to  the  party.  This  I 
shall  notice  as  the  second  mode;  by  an  inquest  of  of- 
fice, where  the  sheriff  had  made  a  return  of  nulla  bo- 
na testatoris  on  the  first  fieri  facias,  a  suggestion  was 
made  on  the  roll,  that  the  defendant  had  wasted  the 
goods;  whereupon,  a  special  fieri  facias  issued  scilicet 
that  the  sheriff  levy  the  debt  of  the  goods  of  the  de- 
ceased, etsi  sibi  constare  potuit,  that  the  executors 
have  wasted  the  goods,  then  dc  bonis  propriis  of  the 
executors-,  upon  which  execution,  it  will  be  the  duty 
of  the  sheriff  to  take  an  inquisition,  and  if  it  be  found 
by  the  inquest,  that  the  goods  of  the  testator  lo  the 
value  of  the  debt  were  wasted  by  the  executors,  and 
this  be  returned  on  the  writ,  a  scire  facias,  will  issue 
against  the  defendants,  to  shew  cause  why  execution 
should  not  be  awarded  of  their  own  proper  goods  and 
chattels.  The  defendants  however,  may  traverse  the 
devastavit  found  by  the  inquest;  and  although  the 
original  judgment  be  against  them,  by  default  or  con- 
fession, yet  they  may  appear  to  the  scire  facias  and 


288  SUIT  AGAINST  EXECUTORS.  [BOOK  iv. 

plead  plene  administraverunt,  absque  hoc  quod  devas- 
taverunt,  which  amounts  to  no  more  than  a  general 
plene  administravit,  which  they  might  have  pleaded 
the  first  time.  Hence  this  mode  of  proceeding  was 
considered  so  tedious  and  troublesome,  that  it  has  been 
observed,  a  plaintiff  had  better  lose  a  small  debt,  than 
proceed  thus  against  an  executor  who  means  to  be 
troublesome.  Boh.  Ins.  Leg.  255." 

"  The  third  way  of  charging  an  executor  dc  bonis 
propriis  after  obtaining  a  judgment  de  bonis  teslatoris, 
is  by  bringing  an  action  of  debt  on  the  first  judgment 
and  suggesting  a  devastavit,  and  to  such  action  he 
cannot  plead  any  thing  in  bar  which  he  might  have 
pleaded  to  the  original  action.  As,  if  the  original 
judgment  had  been  obtained  by  confession  or  default, 
the  defendant  cannot  plead  plene  administravit,  be- 
cause a  judgment,  by  confession  or  default,  is  an  ad- 
mission of  assets  to  the  amount  of  the  plaintiff 's  de- 
mand; and  the  defendant  is  estopped  to  alledge  the 
contrar} ." 

"  A  fourth  mode  in  which  an  executor  may  be  char- 
ged, is  by  his  own  pleading;  as  where  he  has  render- 
ed himself  liable  by  pleading  a  matter,  which  would 
be  a  perpetual  bar,  which  lies  within  his  own  know- 
ledge, and  is  false.  In  such  case  judgment  shall  be 
entered  de  bonis  testatoris  si,  &c.  et  si  non,  de  bonis  pro- 
propriis  of  the  executor;  as  if  he  pleads  ne  unques  ex- 
ecutor, or  that  he  renounced,  and  nulla  bona  devenerunt 
ad  manus.  And  upon  a  judgment  thus  obtained, 
where  an  executor  so  charges  himself,  though  the 
first  execution  must  be  de  bonis  testatoris,  yet  the  she- 


GHAP.  ii.]          SUIT  AGAINST  EXECUTORS.  289 

riff  cannot  return  nulla  bona  testatoris,  simply,  but 
must  also  return  a  devastavit,  Cro.  Eliz.  102. 

:'  If  defendant  pleads  administravit,  plaintiff  may 
pray  judgment,  quando  acciderint;  but  if  he  takes  is- 
sue on  the  plea,  and  it  be  found  against  him,  there 
shall  be  judgment  quod  querens  nilcapiat,  &c.  If  the 
verdict  be  against  the  defendant  on  this  plea,  it  is  ne- 
cessary that  the  jury  should  find  the  amount  of  assets; 
for  which  alone  the  plaintiff  shall  obtain  judgment. 
It  is  necessary  too  that  the  plaintiff  should  have  prov- 
ed the  amount  of  his  claim,  for  though  the  plea  admit 
the  debt,  it  does  not  admit  the  amount  of  it.'' — ib. 

If  the  defendant  die  after  final  judgment,  and  be- 
fore execution,  the  plaintiff  may  sue  out  a.  fieri  facias 
against  the  personal  representatives,  (a)  Buta^./a. 
if  tested,  before  the  defendant's  death,  although  not 
delivered  to  the  sheriff  till  after  it,  may,  without  a 
scire  facias,  be  executed  on  his  goods  in  the  hands  of 
his  executor  or  administrator.  (6) 

A  judgment  signed  at  anytime  during  the  term,  or 
the  vacation  immediately  subsequent,  relates  back  to 
the  first  day  of  the  term,  although  the  defendant  died 
before  the  judgment  was  actually  signed;  and  an  ex- 
ecution tested  the  first  day  of  the  term  may  be  taken 
out  upon  it,  against  his  goods,  (c)  But  if  the  writ  of 
execution  be  not  tested  till  after  the  defendant's 
death,  it  is  irregular;  and  in  such  case  it  is  necessary 
to  revive  the  judgment  by  scire  facias  against  his 
representative,  (d) 

(a)  Tidd's  Prac.  1056.  (c)  7  T.  R.  20.  1  Binn.  R.  172. 

(ft}  Com.  Dig.  Execution,  D.  2   F.     (rf)  6  T.  R.368. 
2  Vent.  218. 


O  O 


290  SUIT  AGAINST  EXECUTORS.         [BOOK  iv. 

If  the  plaintiff  confess  the  plea  of  plene  administra- 
vit,  or  pletie  administravit  pr<eter^  there  shall  be  judg- 
ment in  his  favour  for  the  debt  or  damages  and  costs 
to  be  levied,  in  whole  or  in  part  of  the  lands  and 
goods  of  the  testator  or  intestate,  which  shall  after- 
wards come  to  the  hands  of  the  defendant  to  be  ad- 
ministered, (a)  And  such  judgment  is  styled  a  judg- 
ment of  assets  quando  accidennt,  but  in  that  case,  ex- 
ecution cannot  be  had,  if  there  be  no  lands,  until  the 
defendant  shall  have  goods  of  the  deceased,  when  the 
plaintiff  may  either  sue  out  a  scire  facias  or  bring 
an  action  of  debt  upon  the  judgment,  suggesting  a 
devastavit.  (6) 

In  an  action  against  a  married  woman  executrix  the 
husband  must  be  joined,  (c)  On  a  judgment  against 
husband  and  wife  executrix,  if  she  survive,  an  action 
of  debt  does  not  lie,  suggesting  a  devastavit  by  the 
husband;  for  although,  in  case  she  married  after  the 
testator's  death,  she  is  answerable  for  the  wasting  by 
the  husband,  yet  she  shall  not  be  charged  de  bonis 
propriis  for  the  costs  recovered  against  him.  (d) 

If  there  be  several  executors,  they  must  be  all 
sued  in  case  they  have  all  administered,  (e)  But  such 
as  have  not  administered  may  be  omitted.  (J  )  If  one 
confess  a  judgment  it  shall  not  bind  or  conclude  the 
rest,  (g) 

If  they  plead  distinct  pleas,  it  is  said,  that  shall 
be  received,  which  is  best  for  the  estate j  or  most  de- 

(a)  Wilson  v.  Hunt's  exrs,  1  Peter's  (</)  Com.  Dig-  ad.  I.  3.  2  Ler.  16  i. 

Rep.  442.  (e)  Off.  Ex.  95. 

(fc)Tidd's  Prac.  I()3c5,  1039,  1041.  (/)  Lev.  161.  I  Sid.  242. 

Sed.  vide  2  Saund.  226.  (g)  Hiester  v.  Knipe,  1  Browne, 
(c)  Off.  Ex.  203,  207.  319.  Off.  Ex.  68.  Toll.  Ex.  472. 


CHAP,  ii.]  SUIT  AGAINST  EXECUTORS.  291 

decisive  of  the  question,  (a)  Of  co-executors,  if  some 
are  of  full  age  and  others  infants,  the  action  may  be 
against  them  all,  but  the  latter  cannot  appear  with 
others  by  attorney,  but  must  appear  by  guardian.  (6) 

In  an  action  of  debt  or  on  the  case  against  an  ex- 
ecutor for  a  debt  due  from  the  testator  the  plea  of  non 
estfactum  or  non  assumpsit  is  an  admission  of  the  will 
of  which  defendant  is  executor-,  but  it  is  otherwise 
where  the  action  is  for  a  demand  on  which  the  tes- 
tator was  riot  liable,  as  for  a  legacy,  (c) 

It  is  not  enough  for  an  executor  of  an  executor 
sued  for  breach  of  covenant  made  by  the  original 
testator,  to  plead  plene  administravit  of  all  the  goods 
and  chattels  of  the  original  testator  at  the  time  of  his 
death  come  to  the  hands  of  the  defendant,  &c.  with- 
out also  pleading  plene  administravit  by  the  first  ex- 
ecutor or  at  least  that  the  second  executor  had  no 
assets  of  the  first-,  so  as  to  show  that  he  had  no  fund 
out  of  which  any  devastavit  by  the  first  executor 
could  be  made  good,  (d) 

If  an  administrator  durante  minoritate  continue  in  the 
possession  of  the  effects  after  the  executor  is  come  of 
age,  he  may  be  sued  by  the  executor  or  by  a  creditor. 
(e)  But  if  he  administer  in  part,  and  deliver  to  the  ex- 
ecutor, on  his  coming  of  age,  all  the  residue,  he  cannot 
be  charged  by  a  stranger.  (/)  If  before  the  executor 
attain  the  age  of  twenty-one,  the  administrator  have 
wasted  the  assets,  he  may  be  charged  on  the  special 
matter  by  the  executor-,  (g)  but  subsequent  to  that 
period  he  is  not  liable  for  the  devastavit  at  the  suit  of 

(a)  Off.  Ex.  98.  Toll.  Ex.  472.  (e)  Com.  Dig.  Adm.  F.  1  Sid.   57. 

(6)Yelv.   130.  Style,   318.  2  Stra.         1  Anders.  34. 

784.  '  (/)  i  Mod.  174-5. 

(c)  Hantz  v.  Seely,  6  Binn.  405.          (§•)  Latch.  160. 
d    10  East.  316. 


292  SUJT  AGAINST  EXECUTORS.  [BOOK  iv. 

the  creditor.  The  creditor  must  resort  against  the 
executor,  who  is  entitled  to  his  remedy  against  the 
administrator,  (a) 

The  executor  of  a  deceased  partner  and  the  survi- 
vor cannot  be  jointly  sued  for  a  debt  due  from  the 
partnership,  because  the  former  is  to  be  charged  de 
bonis  testatoris,  the  latter  de  bonis  propriis;  (b}  but  the 
creditor  may  proceed  against  either,  who  may  claim 
from  the  other  contribution. 

An  executor  is  bound,  provided  he  has  assets,  to 
maintain  an  apprentice,  till  the  term  is  expired-,  for 
a  distinction  exists  between  a  covenant  to  maintain 
and  covenant  to  instruct  an  apprentice;  The  former 
is  a  lien  on  the  executor  though  not  named,  in  respect 
to  the  assets;  the  latter  is  a  fiduciary  trust  annexed 
to  the  person  of  the  master,  (c) 

It  has  been  decided  in  two  cases,  that  a  foreign  at- 
tachment will  not  lie  against  executors,  (d)  The  pro- 
priety of  these  decisions  would  be  obvious  if  a  foreign 
attachment  lay  against  residents,  because,  then,  the 
attachment  might  interfere  with  the  order  of  pay- 
ment prescribed  by  the  statute,  but,  issuing  only  against 
non  residents  there  does  not  appear  any  good  reason, 
why  the  creditor  here,  should  by  our  own  laws  be 
deprived  of  an  effectual  remedy  against  a  foreign 
debtor's  effects,  because  of  his  death.  Executors  and 
administrators  are  within  the  London  custom  of  foreign 
attachment,  (e) 

In  all  cases,  in  addition  to  the  actions  above  men- 
Co)  Latch.  267.  1  Anders.  34.  6  Co.  (d)  M'Comb  v.  Dunch,  2  Dall.  73, 

1H.  b.  Pringle  v.  Black's  Ex-  Dall.  97. 

(b)  2  Lev.  228.  (e)  Com.  Dig.  Atk.  A.  B.   3  Bac. 

(c)  Com.    Dig.  Justices  of  peace.         ab.  258.  t  Roll.  ab.  105.  Vid.  Dy. 
B.  57.  4  Bac.  ab;  579,  Toll.  Ex.         1966,  3  Wils.  297.  2  Bla.  Rep. 
476.  834. 


JHAP.  ii.]          SUIT  AGAINST  EXECUTORS.  293 

tioned  against  the  administrator,  the  creditor  may 
bring  suit  on  the  administration  bond,  against  the  ad- 
ministrator  and  sureties. 

By  the  14th  section  of  the  act  of  twenty-seventh  of 
March,  1713,  (a)  the  bond  given  by  the  administra- 
tor is  declared  to  be,  to  and  for  the  use  of,  and  in 
trust  for,  the  person  or  persons  concerned;  and  that 
the  benefit  thereof  shall  be  extended  from  time  to 
time  for  the  relief  and  advantage  of  the  party  aggriev- 
ed by  the  mis-feazance  or  a  non-feazance  of  the  offi- 
cers that  did  or  shall  give  the  same.  And  by 

Sec.  XV.  When  any  of  the  said  bonds  shall  be  put 
in  suit  and  judgment  thereon  obtained;  the  judgment 
shall  remain  in  the  same  nature  the  bonds  were,  and 
no  execution  shall  issue  before  the  party  grieved  shall 
by  writ  of  scire  facias  summon  the  person  or  persons 
against  whom  the  said  judgment  is  obtained,  to  appear 
and  shew  cause,  why  execution  shall  not  issue  upon 
the  said  judgment.  And  if  the  party  grieved  shall 
prove  what  damages  he  sustained,  and  thereupon  a 
verdict  be  found  for  him,  the  court  shall  award  exe- 
cution for  so  much  as  the  jury  shall  then  find,  with 
costs,  and  no  more:  And  the  former  judgment  re- 
mains cautionary,  for  the  satisfaction  of  such  others 
as  shall  legally  prove  themselves  damnified,  and  re- 
cover their  damages  in  manner  aforesaid.  And  by 

Sec.  XVI.  The  register  is  required  to  give  to  any 
person  injured,  requesting  the  same,  a  true  copy  of 
such  bond,  and  to  produce  the  original  in  court  upon 
any  trial  that  shall  be  had  for  the  breach  of  any  of 
them  if  required  by  the  court,  and  if  the  register  shall 

(a)  Sm.  L.  85. 


294  SUIT  AGAINST  EXECUTORS.  f  BOOK  iv. 

refuse  or  delay  to  give  copies  thereof,  and  produce 
the  original,  he  shall  forfeit  to  the  party  grieved 
treble  damages. 

The  first  step  under  this  act  of  assembly  is  to 
bring  suit  and  obtain  judgment  for  the  penalty  of  the 
bond,  by  proving  the  breach  of  any  one  of  its  condi- 
tions. These  conditions  are,  1.  That  the  administra- 
tor will  make  an  inventory  on  or  before  the  day  na- 
med in  the  bond;  2.  That  he  will  well  and  truly  ad- 
minister according  to  law,  the  goods,  chattels,  and 
credits  of  the  decedent,  which  shall  come  to  his  hands: 

3.  That  he  will  make  a  just  and  true  account  of  his 
administration,  at  or  before  the  day  named  in  the  bond: 

4.  That  he  will  pay  the  undisposed  residue,  to  such 
persons  as  the  Orphan's  Court  shall  appoint-,  and   5. 
That  if  a  will  be  proven,  he  will  deliver  up  his  let- 
ters of  administration. 

The  breach  usually  alleged  on  the  suit  on  the 
bond,  is  failure  to  file  an  inventory  within  the  month 
or  to  render  an  account  within  the  year.  But  it 
would  seem  that  any  "neglect  of  duty  on  the  part  of  the 
administrator  may  be  assigned  as  a  breach  to  sustain 
the  action,  (a)  such  as  the  non  payment  of  a  debt,  or 
a  devastavitj  contrary  to  the  English  law  which  con- 
strues the  words  of  the  condition  well  and  truly  to 
administer,  to  apply  merely  to  the  bringing  in  of  a 
true  inventory  and  account  and  not  to  the  payment 
of  the  intestate's  debts,  (b) 

In  the   suit  on  the  bond,  the  question   is  simply 

(a)  Yard  v.  Lea's  exrs.   3  Yeates,        428,  430.  Lutwig822. 1  Salk.  315. 

345.  316.  Com.  Dig.  adm.  C.  3. 

(6)  Toll.  EC.  496.  5  Burn.  Ex.  L. 


OHAP.  ii.]          SUIT  AGAINST  EXECUTORS.  295 

whether  the  bond  be  or  be  not  forfeited.  If  it  be, 
judgment  goes  for  the  whole  penalty.  But  to  obtain 
fruition  of  this  judgment,  the  plaintiff  must  issue  sci. 
fa.  upon  which  an  issue  is  formed  to  determine  the 
amount  of  the  plaintiff's  claim:  For,  in  debt  on  a 
bond  with  a  collateral  condition  the  plaintiff  can  re- 
cover nothing  but  what  he  is  entitled  to,  on  a  breach, 
of  that  condition,  (a) 

The  person  who  first  sues  is  entitled  to  take  the 
whole  of  the  penalty,  if  his  demand  amount  to  so 
much,  in  exclusion  of  every  other  claimant.  (6)  If 
there  be  subsequent  suitors  to  the  same  term,  they 
are  to  be  considered  as  applying  at  the  same  time, 
and  the  surplus  is  to  be  distributed  pro  rata,  but  if  in- 
stead of  suing,  they  apply  to  the  court  to  come  in  un- 
der the  first  suit,  priority  of  application  will  give  ti- 
tle to  priority  of  payment.  And  if  the  party  first  su- 
ing be  prevented  from  obtaining  judgment,  by  an  or- 
der of  the  court  to  stay  proceedings  on  the  defend- 
ant's paying  into  court  the  penalty  of  the  bond,  he 
will  still  be  entitled  to  preference,  (c) 

The  law  as  above  laid  down  has  been  determined 
in  relation  to  official  bonds  generally.  It  is  yet  to  be 
decided,  whether  on  judgment  for  the  penalty  of  an 
administration  bond,  the  amount  is  not  to  be  held  in 
the  place  of  assets,  and  to  be  distributed  as  assets,  un- 
der the  14th  section  of  the  intestate  act  of  1793,  and 
whether  any  thing  more  can  be  recovered  from  the 
administrator  than  the  actual  amount  of  the  assets 
which  had  or  ought  to  have  come  to  his  hands. 

(a)Masseyv.  Schots   et  al.    1  Pe-     Dall.  501.  4  Dall.  106.  in  note. 

ter's  Rep.  13-2.  135.  (c)  M'Kean   v.  Shannon,  1    Binn. 

(6)  Dallas    v.    Chaloner's  exrs.   3        370. 


£96  SUIT  AGAINST  EXECUTORS.  [BOOK  iv, 

It  is  the  practice  for  one  alledging  himself  to  be  a 
creditor,  to  bring  suit  against  the  administrator  and 
his  sureties  on  the  administration  bond,  on  breach  of 
the  condition,  without  having  first  established  that 
he  is  a  creditor,  the  name  of  the  creditor  actor,  not 
even  appearing  in  the  suit.  The  administration  bond 
is  given  for  the  benefit  of  the  persons  concerned  in 
the  estate  of  the  decedent,  and  it  would  seem  no 
more  than  proper,  that,  one  at  whose  instance  an  ac- 
tion on  the  bond  is  commenced,  and  the  consequen- 
ces of  a  judgment  induced  upon  the  sureties,  should 
appear  by  the  judgment  of  some  competent  tribunal 
to  be  a  creditor.  Under  this  practice  the  sureties 
may  be  assailed  and  distressed  by  one  having  no 
claim  upon  the  estate,  or  whose  claim  is  totally  un- 
founded. This  disregard  of  the  sureties  is  not  char- 
acteristic of  our  system,  since  in  the  case  of  dismissed 
executors  and  administrators,  the  law  has  provided 
that  recourse  may  be  had  to  their  sureties  on  return 
of  the  sheriff  of  nulla  bona  to  an  execution  against 
such  executors  or  administrators,  implying  that  such 
recourse  shall  not  be  had  until  after  such  return. 
Expressio  uniusest  exclusio  alter  LUS.  In  case  ofdevasta- 
vit  the  sureties  in  the  administration  bond  are  liable, 
but  not  until  after  action  brought  against  the  adminis- 
trator arid  judgment  de  bonis  intestatoris^fi.fa.  return  of 
nulla  bona  and  judgment  against  the  administrator  in 
suit  on  the  original  judgment,  suggesting  a  devastavit. 
This  subject  was  thoroughly  examined  in  the  case 
of  Gordon's  administrators  v.  Justices  of  Frederick,  (a) 
The  following  extracts  are  from  the  opinion  of  Judge 
Tucker  delivered  in  that  case. 

(a)l  Munford  Rep.  1. 


CHAP,  n.]          SUIT  AGAINST  EXECUTORS.  297 

"  This  was  an  action  upon  an  administration  bond 
against  the  administrators  and  their  securities  for  a 
devastavit,  in  which  it  was  contended  to  be  necessary 
to  review  the  decision  of  this  court,  in  the  case  of 
Braxton  v.  Justices  of  Spotsylvania  court,  1  Wash.  31." 

"  After  oyer  of  the  bond  and  condition,  the  defend- 
ants (securities)  pleaded  conditions  performed:  the 
replication  traverses  the  plea,  and  charges  a  breach 
in  the  non-payment  of  a  bill  of  exchange,  which 
was  protested,  of  which  the  executor  had  notice,  but 
had  not  paid  it;  having  paid  debts  of  inferior  dignity 
after  such  notice,  and  wasted  the  assets.  The  defend- 
ants rejoined,  and  by  protestation  say  the  executor 
had  not  wasted  the  assets.  The  jury  found  that  there 
was  1,1142:  due  to  the  relator  upon  the  bill  of  ex- 
change, and  that  the  executor  had  ivasted  the  assets;  and 
judgment  was  entered  for  the  penalty  of  the  bond, 
but  to  be  discharged  by  the  payment  of  1,1 142  as  to 
this  breach.  From  this  judgment  the  defendants  ap- 
pealed. 

"  Two  questions  were  submitted  to  the  Court.  The 
first  it  is  unnecessary  to  notice:  the  second  was, 

"  Whether  the  action  could  be  maintained  before 
a  judgment  first  had  by  the  plaintiff  against  the  repre- 
sentatives of  the  debtor,  and  an  execution  and  return 
ofnullabona.*' 

The  court  in  the  discussion  of  this  question,  is  re- 
ported to  have  said,  "*  The  true  question  is,  has  the 
relator  brought  himself  within  the  act;  or,  in  other 
words,  does  it  appear  from  this  record,  that  he  is  a 
pafty  injured  within  the  words  and  meaning  of  the 

p  p 


298  SUIT  AGAINST  EXECUTORS.  [BOOK  iv. 

act.*  A  man  who  claims  as  a  creditor,  and  means  to 
take  the  benefit  of  this  act,  (1748,  c.  3.)  must  shew 
himself  to  be  a  creditor;  that  the  testator  left  assets; 
that  they  came  to  the  hands  of  the  executor-,  that 
there  was  a  sufficiency  to  discharge  his  demand,  or  so 
much  thereof,  after  paying  debts  of  higher  dignity; 
and  that  the  executor  has  wasted  the  assets.  Without 
this  concurrence  there  is  no  injury  done  him."  The 
report  proceeds  thus: 

"  An  attempt  was  made  at  the  bar  to  shew,  that 
the  paying  of  debts  of  an  inferior  dignity,  first, 
was  of  itself  a  devastavit;  and  that  a  devastavit  for 
ever  so  trifling  a  sum,  renders  the  executor  liable 
for  the  whole  demand,  although  assets  to  the  twenti- 
eth part  never  came  to  his  hands.  But  neither  reason 
nor  authority  warrant  this  doctrine;  for,  surely,  if 
there  be  a  sufficiency  of  assets,  it  is  of  no  consequence 
in  what  order  they  are  paid.  But  the  person  who 
means  to  make  use  of  this  act,  must  shew  himself  to 
be  a  creditor  in  the  usual  course  of  law.  It  is  not 
enough  to  produce  a  mere  document  of  a  debt;  he 
must  first  institute  a  suit  against  the  executor  or  ad- 
ministrator, because  it  is  in  the  first  instance,  a  dis- 
pute between  creditor  and  debtor,  whether  or  no  a 
debt  actually  exists;  a  dispute  which  the  securities  to 
such  a  bond  (who  are  strangers  to  the  contract)  are 
by  no  means  competent  to  manage.  It  is  a  princi- 
ple of  universal  law,  that  both  parties  shall  be  heard. 
Let  us  put  this  case:  suppose  A  binds  himself  in  a 
bond  to  B,  to  pay  him  whatever  sum  C  owes  him,  (B;) 

*  A  person  concerned  tvilhia  the  Penasylrania  act  of  1713,  S.  14. 


CHAP,  ii.]          SUIT  AGAINST  EXECUTORS.  299 

now,  before  a  forfeiture  is  incurred  by  A,  must  not 
B  first  prove  the  sum  that  C  actually  owes  him!  Mr. 
Waller  (the  relator),  therefore,  ought  to  have  shewn, 
by  an  action  against  the  executor,  that  he  was  a 
creditor" 

Thus  far  the  relator  in  the  present  case  (if  the 
breach  be  sufficiently  assigned  in  the  replication) 
may  be  said  to  have  proceeded.  He  has  alledged 
that  he  has  obtained  a  judgment  against  the  adminis- 
trators; and  I  will  suppose  it  to  be  a  debt  due  from 
their  intestate. 

The  court  proceeds  thus.  "  He  (the  relator)  ought 
to  have  shewn  by  his  action  against  Moore,  the  execu- 
tor, that  he  had  committed  a  devastavit;  a  suggestion  of 
a  devastavit  may  be  likened  to  a  criminal  prosecution, 
and  an  executor  shall  not  be  presumed  guilty  of  a 
devastavit  till  it  is  found  against  him  by  a  verdict.'' 

Here  then  we  are  brought  to  the  inquiry,  by  what 
course  of  proceeding  this  fact  may  be  found  against 
an  executor  by  a  verdict. 

Anciently,  if  the  sheriff  returned  nulla  bona,  and 
also  a  devastavit  to  a  fieri  facias  de  bonis  testatoris 
sued  out  on  a  judgment  obtained  against  an  executor, 
it  was  sometimes  the  practice  to  sue  out  a  capias  ad 
satisfaciendum  against  the  executor,  or  a  fieri  facias 
de  bonis  propriis.  But  the  better  and  more  frequent 
method  was  to  sue  out  a  scire  facias,  and  obtain  an 
award  of  execution  before  issuing  the  fieri  facias  de 
bonis  propriis.  But  the  most  usual  practice  upon  the 
sheriff's  return  of  nulla  bona  to  a  fieri  facias  de  bonis 
testatoris,  was  to  sue  out  a  special  writ  of  fieri  facias 
de  bonis  testatoris,  with  a  clause  therein,  et  si  tibi  con- 


300  SUIT  AGAINST  EXECUTORS.  fuooK  iv. 

stare  potent,  that  the  executor  had  wasted  the  goods, 
then  to  levy  de  bonis  propriis.  And  this  we  are  told 
continued  to  be  the  practice  of  the  King's  Bench 
until  the  time  of  Charles  Ij  but  in  the  Common  Pleas 
a  practice  had  prevailed  in  early  times  upon  a  sug- 
gestion in  the  special  writ  of  fieri  facias  of  a  devasta- 
vit  by  the  executor,  to  direct  the  sheriff  to  inquire  by 
jury  whether  the  executor  had  wasted  the  goods,  and 
if  the  jury  found  he  had,  then  a  scire  facias  was  sued 
out  against  him;  and,  unless  he  make  a  good  defence 
thereto,  execution  was  awarded  de  bonis  propriis, 
which  practice  was,  about  the  time  of  Charles  I  re- 
commended by  the  court  of  King's  Bench  to  be 
adopted  in  that  court  likewise.  It  afterwards  be- 
came the  practice  of  both  courts,  for  the  sake  of  ex- 
pedition, to  incorporate  the  fieri  facias  inquiry,  and 
scire  facias  into  one  writ,  thence  called  a  sdrejkn 
inquiry.  This  writ  recites  the  fieri  facias  de  bonis 
testatoris  sued  out  on  the  judgment  against  the  execu- 
tor, the  return  of  nulla  bona  by  the  sheriff,  and  then 
suggesting  that  the  executor  had  sold  and  converted 
the  goods  of  the  testator  to  the  value  of  the  debt  and 
damages  recovered,  commands  the  sheriff  to  levy 
the  said  debt  and  damages  of  the  goods  of  the  testa- 
tor, in  the  hands  of  the  executor,  if  they  could  be 
levied  thereof;  but  if  it  should  appear  to  him  by  the 
inquisition  of  a  jury,  that  the  executor  had  wasted 
the  goods  of  the  testator,  then  the  sheriff  is  to  warn 
the  executor  to  appear,  &c.  (a)  And  if  the  sheriff 
omits  to  give  notice  to  the  defendant  of  the  time  the 

(a)  See  Lilly's  Ent.  664-666. 


CHAP,  ii.]  SUIT  AGAINST  EXECUTORS.  301 

writ  is  to  be  executed,  the  inquisition  may  be  set 
aside  for  that  cause,  (a)  And  this  practice,  we  are 
told,  is  still  frequently  adopted  in  England,  but  in 
this  country,  no  case  of  the  kind  has  occurred  with- 
in my  own  experience.  But  the  most  usual  mode 
of  proceeding,  even  in  England,  is  by  action  of  debt 
upon  the  judgment,  suggesting  a  devaMavit,  which, 
we  are  told,  was  substituted  in  lieu  of  the  proceeding 
by  scirejieri  inquiry.  (6)  The  foundation  of  this  ac- 
tion is  a  judgment  obtained  againsjt  the  executor.  A 
judgment  against  an  executor  or  administrator, 
whether  by  default,  (that  is,  by  neglect  after  an  ap- 
pearance, for  in  England  no  judgment  can  be  in  a 
personal  action  without  appearance,)  (c)  or  upon 
demurrer,  or  upon  a  verdict  on  any  plea,  pleaded  by 
the  executor,  except  plene  administravit,  or  admitting 
assets  to  such  a  sum,  et  rien  ultra,  is,  in  England,  (and 
perhaps  in  this  country  before  the  act  of  1806,  c.  21j) 
conclusive  upon  him  that  he  has  assets  to  satisfy  such 
judgment.  But  our  act  of  1792,  c.  92.  s.  33.  (d)  de- 
clares, that  no  security  for  any  executor  or  adminis- 
trator shall  be  chargeable  beyond  the  assets  of  the 
testator  or  intestate,  by  reason  of  any  omission  or  mis- 
take in  pleading  or  false  pleading,  of  such  executor 
or  administrator.  The  effect  of  this  provision,  as  it 
relates  to  the  securities,  I  shall  consider  hereafter. 
Indeed  if  the  executor  or  administrator  plead  either 
a  general  or  special  plene  administravit,  it  is  now  held 
that  he  is  only  liable  to  the  amount  of  the  assets,  prov- 

(o)2  Lord  Raym.  1382.   Steed   v-     (c)  1  Ld.  Raym.  590.  3  Blac.  Com. 

Layner.  1  Stra.  623.  S.  C.  316. 

(6)  2  Ld.  Raym.  974.  (rf)  1  Rev.  Code,  p.  165. 


302  SUIT  AGAINST  EXECUTORS.         [BOOK  iv. 

ed  to  be  in  his  hands;  (a)  though  the  case  was  for- 
merly taken  to  be,  that  if  any  assets,  however  small^ 
were  proved  to  be  unadministered,  the  plaintiff  was 
entitled  to  recover  his  whole  demand  from  the  exec- 
utor: so  that  now  a  judgment  against  an  executor  on  a 
verdict  upon  plene  administravit,  is  only  an  admission 
of  assets  to  the  extent  of  assets  which  may  be  proved 
to  be  in  his  hands.  If  therefore  on  &  fieri  facias  de  bo- 
nis  testatoris,  on  a  judgment  obtained  against  an  exec- 
utor by  either  of  the  ways  above  mentioned,  either 
no  goods  can  be  found,  which  were  the  testator's,  or 
not  sufficient  to  satisfy  the  demand,  or,  (which  is  the 
same  thing,)  if  the  executor  will  not  expose  them 
to  the  execution,  that  is  evidence  of  a  devastavit. 
And  the  English  authorities  in  general  seem  to  con- 
sider it  as  conclusive-,  but  Serjeant  Williams,  in  his 
note  on  the  case  of  Hancock  v.  Proud,  (b)  says,  that 
to  a  scire  facias  on  a  judgment  or  action  of  debt  sug- 
gesting a  devastavit,  the  defendant  cannot  plead 
plene  administravit  but  only  controvert  the  devastavit; 
of  which  fact  the  judgment  and  sheriff's  return  of 
nulla  bona  testatoris,  are  almost  conclusive  evidence j 
and  the  judgment  will  be  against  the  defendant  de 
bonis  propriis.  The  mode  of  proceeding  is  immate- 
rial, it  is  said,  because  the  executor  is  entitled  to  the 
same  defence  in  an  action  of  debt  upon  the  judgment 
suggesting  a  devastavit,  as  in  the  proceeding  by  scire 
fieri  inquiry.  The  usual  course  in  an  action  of  debt 
is,  first,  to  sue  out  a  fieri  facias  upon  the  judgment 
obtained  against  the  executor,  and,  upon  the  sheriff's 

(a)  2  Wash.  302.  Booth  v.  Armstrong-.  (6)  1  Saund.  336. 


OHAP.  ii.]  SUIT  AGAINST  EXECUTORS.  303 

return  of  nulla  bona,  to  bring  the  action,  and  state  in 
the  declaration,  the  judgment,  the  writ  and  return-, 
on  the  trial,  to  give  in  evidence  the  judgment,  the 
fieri  facias,  and  the  return  to  prove  the  case.  There 
are  certain  rules  equally  applicable  to  the  proceed- 
ing by  scire  fieri  inquiry,  and  to  the  action  of  debt 
on  a  devastavit;  1st.  The  return  of  a  devastavit  by 
the  sheriff,  on  the  execution  issued  upon  the  first 
judgment  against  the  executor,  is  not  conclusive,  and 
therefore  the  executor  may  traverse  the  devastavit, 
whether  it  be  found  by  the  inquisition,  or  returned 
by  the  sheriff.  The  form  of  the  traverse  is  indeed 
different.  In  the  scire  fieri  inquiry,  the  executor  pre- 
cisely and  expressly  denies  the  devastavit  found  by 
the  inquisition,  and  takes  issue  upon  it.  (a)  But,  in  an 
action  of  debt,  the  whole  may  be  given  in  evidence  on 
nil  debet,  (b)  or  on  not  guilty,  (c) 

2dly.  The  executor  cannot,  in  either  case  plead 
plene  administravit,  or  any  other  plea  of  the  same  na- 
ture, which  puts  his  defence  upon  want  of  assets,  un- 
less the  first  judgment  were  of  assets  infuturo,  or  the 
declaration  in  the  second  action  should  suggest  a  de~ 
vastavit  of  assets  which  had  accrued  after  the  judg- 
ment declared  upon-,  in  both  which  cases,  such  pleas 
have  been  held  admissible,  (d)  The  reason  is,  that 
such  plea  (except  in  the  cases  just  mentioned)  would 
be  contrary  to  what  is  admitted  by  the  judgment  in 
the  first  action.  And,  if  the  truth  were,  that  the  ex- 

(a)  See  1  Saund.  306.  Lilly's  Ent.  (</)  See  6  T.  R.  1.  Mara  v.  Quin; 

666,  667.  2  Saund.  402.  and  2  Wash.  187.  Kuffin  v.  Pen- 

(6)  1  Saund.  219.  2  Ld  Raym.  1502.  deton.  Bull.  N.  P.  169.  Taylor 

(c )  1  Salk.  314.  2  Lord  Raym.  1503.  v.  Holman  £  Robins. 

1  Term  Rep.  462. 


304  SUIT  AGAINST  EXECUTORS.  [BOOK  iv. 

ecutor  had  no  assets,  he  should  have  set  it  up  as  a 
.defence  to  the  original  action,  which  having  neglect- 
ed to  do,  he  shall  not  be  permitted  to  say  so  after- 
wards. For  it  is  a  general  rule,  that  if  a  party  do 
not  avail  himself  of  the  opportunity  of  pleading  mat- 
ter in  bar  to  the  original  action,  he  cannot  afterwards 
plead  it,  either  in  another  action  founded  on  it,  or  in  a 
scire  facias.  And  if  he  did  plead  plene  administravit, 
to  the  original  action,  and  the  judgment  was  had  upon 
a  verdict,  finding  that  he  had  assets  sufficient  to  satis- 
fy the  debt,  he  is  of  course  equally  concluded  from 
saying  that  he  had  no  assets.  But,  if  the  verdict  in 
the  original  action  do  not  find,  upon  the  plea  of  plene 
administravit,  that  there  are  assets  sufficient  to  pay 
the  debt,  or  if  it  do  not  find  the  value  of  the  goods  in 
the  hands  of  the  defendant,  if  not  sufficient  to  satisfy 
the  plaintiff 's  demand,  as  such  a  verdict  would  be  un- 
certain and  insufficient  upon  the  issue  joined,  the 
judgment  founded  upon  it  may  be  reversed  for  error, 
(a)  And  for  the  same  reason  that  the  executor  can- 
not plead  the  want  of  assets,  (except  in  the  cases 
above  mentioned,)  he  cannot  give  in  evidence  the 
want  of  assets  on  the  trial  of  the  devastavit,  either  in 
the  scire  fieri  inquiry,  or  in  the  action  on  a  devastavit; 
nor  even  upon  a  writ  of  inquiry  after  judgment  by 
default  in  the  original  action,  according  to  the  practice 
in  England.  See  1  Saund.  219.  n.  S.  Wheatly  v.  Lane, 
in  which  the  editor,  Serjeant  Williams,  has  given  a 
most  copious  and  satisfactory  view  of  this  subject. 

Such  appears  to  be  the  modern  course  of  proceed- 
ing against  an  executor  in  England,  in  order  to  charge 

(a)  2  Wash.  302.  Booth  v.  Armstrong-. 


CHAP,  ii.]          SUIT  AGAINST  EXECUTORS.  305 

him  personally  for  a  devastavit,  and  such  the  course 
by  which  he  may  defend  himself  against  the  charge; 
and  in  my  opinion,  they  will  justify  what  is  re- 
ported to  have  been  said  by  the  court,  1  Wash.  33. 
"  an  executor  shall  not  be  presumed  guilty  of  a  de- 
vastavit  till  it  is  found  against  him  by  a  verdict."  The 
action  of  debt  upon  the  first  judgment,  is  the  clear- 
est, simplest,  and  most  unexceptionable  course  of 
proceeding,  because  the  declaration,  in  such  an  action 
must  set  forth  the  whole  of  the  plaintiff's  case;  and 
give  the  executor  notice,  of  the  particular  charge 
against  him.  Whereas  in  an  action  of  debt  upon 
the  executor's  bond^  the  ordinary  practice  here 
seems  to  be,  to  declare  upon  the  bond,  as  upon  a 
bond  for  the  payment  of  money,  without  setting  forth 
the  condition,  or  alledging  any  particular  breach 
thereof;  leaving  it  to  the  defendant  whether  the  ex- 
ecutor himself  or  his  representatives,  if  he  be  dead,  or 
the  security  if  joined  with  him  in  the  action,  or  sued 
alone,  (as  was  done  in  the  case  of  Taylor  v.  Street,)  to 
guess  at  the  breaches  which  may  be  afterwards  as- 
signed in  the  replication  as  in  the  case  now  before  us. 
There  is  too  much  roohi  for  surprise  in  such  a  course 
of  proceeding,  which  can  hardly  be  practised  in  an 
action  of  debt  brought  upon  the  judgment,  and  sug- 
gesting a  devastavit;  a  circumstance  of  itself  sufficient 
in  my  eyes  to  give  the  preference  to  the  latter  ac- 
tion. But  our  act  of  1792,  c.  92.  s.  33.  (a)  affords  a 
stronger  reason  (one  indeed  that  is  conclusive  to  my 
mind)  why  this  course  of  proceeding  which  I  recom- 
mend must  be  adopted  in  all  cases  arising  upon  any 

(a)  1  Rev.  Code,  p.  165. 


306  SUIT  AGAINST  EXECUTORS.        [BOOK,  iv, 

executor's  or  administrator's    bond,  executed  since 
the  commencement  of  that  act,  which  expressly  de- 
clares, "  that  no  security  for  any  executor  or  admin- 
istrator shall  be  chargeable  beyond  the  assets  of  the 
testator  or  intestate,  by  reason  of  any  omission  or  mis- 
take in  pleading,  or  false  pleading,  of  such  executor 
or  administrator."    Put  the  case,   that  an  executor, 
who  has  never  received  more  than  one  hundred  dol- 
lars of  his  testator's  estate,  shall  by  his  own  inatten- 
tion or  mismanagement,  or  that  of  his  counsel  or  at- 
torneys, have  made  himself  personally  liable  to  satis- 
fy judgments  against  him  for  demands  against  his  tes- 
tator for  ten  thousand   dollars.     Can   the  securities 
be  charged  for  more  than  the  one  hundred  dollars, 
if  that  were  in  truth  the  whole  of  the  assets?  Certain- 
ly not.     Is  it  not  then   incumbent  on   the   creditor, 
when  he  brings  an  action  against  the  securities,  to 
shew  that  assets  sufficient  to  discharge  his  debt  have 
come  to  the  hands  of  the  executor,  and  that  he  has 
wasted  them?  Certainly  it  is;  nor  will  it  be  sufficient 
to  shew  that  the  executor   either  by  his  neglect,  or 
false  pleading,  has  made  himself  liable  for  the  debt 
personally,  without  shewing  that  he  actually  had  as- 
sets sufficient  to  pay  the  debt,  or  a  part  thereof. 
'  It  may  be  asked,  perhaps,  how  is  a  creditor  to  as- 
certain the  amount  of  the  assets  which  have  come  to 
the  hands  of  an  executor?    The  law,  I  conceive,  has 
sufficiently   pointed  out  the  method;  it  requires  the 
executor  to  give  bond,   with  condition,  "  to  make  a 
true  and  perfect  inventory  of  all  the  goods,  chattels, 
and  credits  of  the   deceased,  which  have,  or  shall 
come  to  the  hands,  possession  or  knowledge  of  the 


UHAP.  ii.]          SUIT  AGAINST  EXECUTORS.  307 

executor,  or  into  the  hands  and  possession  of  any  other 
person,  for  him,  anfji  the  same  so  made  to  exhibit  in- 
to the  Court  granting  the  probate,  (or  letters  of  ad- 
ministration, as  the  case  may  be,)  at  such  time  as  he 
shall  be  thereunto  required  by  the  court,  (a)  His 
oath  also  binds  him  to  make  a  true  and  perfect  in- 
ventory, and  also  a  just  account,  when  thereto  requi- 
red, (b)  If  an  executor  should  unreasonably  delay  to 
make  and  return  an  inventory,  any  creditor  or  other 
person  interested  in  the  estate  might  by  application 
to  the  court,  procure  him  to  be  summoned  to  return 
an  inventory,  (c)  By  this  course,  which  is  conforma- 
ble to  the  practice  in  England,  (d)  the  amount  of 
the  assets  may  be  ascertained,  and  by  the  same 
course  the  account  of  his  executorship,  which  is  also 
to  be  exhibited  when  thereto  required  by  the  court, 
may  likewise  be  obtained:  And  surely  this  course 
is  infinitely  more  likely  to  attain  the  great  ends  of  jus- 
tice, than  to  trust  to  a  common  jury  to  adjust  and 
settle  a  complicated  account  of  an  executors  or  ad- 
ministrator's transactions,  in  a  contest  between  a 
creditor  and  the  security  for  the  executor  or  adminis- 
trator. Or  should  a  resort  to  a  court  of  equity  be 
found  necessary  for  a  discovery  of  assets,  which  may 
be  concealed  by  the  executor,  or  may  have  gotten 
into  the  hands  of  legatees,  or  others,  with  the  assent 
or  connivance  of  the  executor  or  administrator,  that 
court  might  direct  an  account,  as  was  done  in  this 
court  in  the  case  of  Taliaferro  and  Gaines,  v.  Thorton 

(o)  I  Rev.  Code,  p.  163.  ria,  p.  355.  Sir  T.    Raym.  Rep. 

(b)  Ibid.  p.  162.  470.  6  Term.  Rep.   6  Mara  v. 

(c)  Infra.  Quin. 

(d)  See  Nelson's  Lex  Testamenla- 


308  SUIT  AGAINST  EXECUTORS.  [BOOK.IV. 

and  Wife,  (a)  against  all  parties,  however  remotely 
concerned  in  interest;  the  same  course  I  perceive  to 
have  been  intimated  by  Judge  Pendleton,  in  the  case 
of  Burnley  v.  Lambert,  (b)  and  White,  Whittle,  &  Co. 
v.  Bannisters  Executors, (c)  which  I  shall  notice 
hereafter;  and  to  have  been  pursued  by  the  present 
Chancellor  of  the  Richmond  District,  in  that  of  Clarke 
v.  Webb  and  otlwrs.  (d) 

To  return  to  the  case  ofBraxton  v.  The  Spotsylva- 
nia  Justices.  The  Court  proceeds  to  say:  "  It  may 
be  objected  that  the  act  does  not  prescribe  that  a  cre- 
ditor shall  not  go  against  the  securities  in  the  first 
instance;  and,  therefore,  that  the  action  was  well 
brought;  to  which  this  answer  presents  itself,  that  it 
is  an  established  principle  of  construction,  that  where 
a  statute  has  given  a  new  remedy,  without  pointing 
out  the  mode  in  which  this  remedy  is  to  be  attained, 
the  rules  of  the  common  law,  and  the  practice  of  the 
courts,  founded  upon  the  reason  of  the  thing,  shall 
be  pursued."  I  subscribe  most  fully  to  this,  as  to 
every  preceding  part  of  the  opinion,  which  is  report- 
ed to  have  been  unanimously  given  in  that  impor- 
tant case.'' 

The  administrator  is  bound  to  file  his  inventory 
within  one  month,  though  no  citation  have  issued 
against  him.  But,  it  is  not  necessary  that  the  inven- 
tory contain  more  goods  than  have  come  .to  his  hands, 
at  the  time  of  filing;  the  inventory  of  property  subse- 
quently received  may  be  filed  subsequently.  The  ad- 
ministrator must  also  file  an  account  within  the  year, 
but  it  need  not  be  a  final  account.  He  may  settle 

(a)  May  5,  1806.  MS.  (c)  Ibid  168. 

(b)  I  Wash.  312.  (d)  2  Hen.  and  Munf.  8,  9. 


OHAP.  n.J  SUIT  AGAINST  EXECUTORS.  309 

as  far  as  the  nature  of  the  case  admits,  and  pray  time 
for  the  settlement  of  another  account  which  will  al- 
ways be  granted,  (a)  But  if  he  fail  to  file  an  in- 
ventory within  the  month,  or  to  settle  an  account 
within  the  year,  the  bond  will  be  forfeited.  (6)  The 
judgment  on  the  bond  stands  as  a  security,  but  the 
party  cannot  take  out  execution  until  he  has  proved 
his  damages  after  taking  out  a  scire  facias,  (c) 

Although  executors  are  not  required  on  taking  out 
letters  testamentary  to  give  bond,  yet  they  may  be 
compelled  so  to  do,  if  the  Orphan's  Court  should  be 
of  opinion,  on  application  made  to  them,  that  they  are 
wasting  or  mismanaging  the  estate. 

By  the  first  section  of  the  act  of  fourth  of  April, 
1797,  (d)  it  is  provided  that  "  when  any  legatee, 
creditor  or  person  interested  in  the  real  or  personal 
estate  of  any  decedent,  with  a  last  will  and  testa- 
ment or  surety  in  any  administration  bond,  shall  de- 
clare on  oath  or  affirmation  that  he  has  sufficient 
cause  to  believe,  that  the  executors  or  administrators, 
with  or  without  a  will  annexed,  are  wasting  or  mis- 
managing the  estate  of  such  decedent,  and  shall 
make  application  for  security  to  the  Orphan's  Court 
of  the  county,  in  which  letters  testamentary  or  letters 
of  administration  with  or  without  a  will  annexed  have 
been  granted,  such  court  is  empowered  to  examine 
the  cause  of  complaint;  and  if  it  shall  appear  to  them 
to  be  just,  to  order  such  executors  or  administrators 
to  give  sufficient  bond  with  sureties,  or  such  further 
security  as  they  may  judge  necessary  according  to 

(a)  Com.  t.  Bryan  et  al.  8  S.  &  R.  130.  (c)  Ibid. 

(&)  Ibid.  (d)  3  Sm.  296, 


310  SUIT  AGAINST  EXECUTORS.         [BOOK  iv. 

the  value  of  the  estate,  which  securities  shall  be  ta- 
ken and  filed  in  the  said  court  in  the  name  of  the 
Commonwealth  of  Pennsylvania;  and  the  said  bonds 
shall  be  deemed  and  considered  in  trust  for  the  bene- 
fit of  all  persons  interested  in  said  estate,  whether  as 
legatees,  legal  representatives,  creditors  or  sureties, 
in  former  administration  bonds.  And  in  case  such 
executor  or  administrator  shall  refuse  or  neglect  for 
the  space  of  thirty  days  after  due  notice  of  such  order, 
to  give  the  security  or  further  security  so  ordered, 
then  the  court  shall  vacate  the  letters  testamentary  or 
of  administration,  and  award  new  letters  to  be  granted 
and  issued  by  the  register  of  the  proper  county,  to 
such  person  or  persons  and  on  such  security  as  the 
court  shall  think  proper,  and  shall  moreover  order 
the  first  executor  or  administrator  to  deliver  over  and 
pay  to  the  successor  all  the  goods,  chattels,  rights,  cre- 
dits, title  deeds,  evidences  and  securities  which  were 
of  the  decedent  and  which  came  to  his  hands  and  re- 
main unadministered;  and  to  account  to  the  said  suc- 
cessor for  the  goods,  chattels,  rights  and  credits  which 
shall  have  been  previously  administered,  and  pay 
over  the  balance  which  shall  remain  due  from  him 
to  the  said  successor,  in  such  manner  and  time  as  the 
court  shall  upon  the  examination  and  confirmation  of 
such  account,  (to  be  had  according  to  the  usual  course 
of  proceeding  in  case  of  accounts  of  executors  and  ad- 
ministrators settled  in  such  courts)  award  and  order. 
And  if  such  superseded  executor  or  administrator 
shall  neglect  or  refuse  to  comply  with  the  award  and 
order  of  the  court  touching  the  premises,  the  court, 
on  motion,  shall  proceed  against  him  or  them  as  is 


CHAP,  ii.]          SUIT  AGAINST  EXECUTORS. 

lawful  in  cases  of  contempt;  or  the  succeeding  ad- 
ministrator may  proceed  at  law  against  him,  or  his 
sureties,  if  any  there  be,  or  against  any  other  person 
or  persons,  who  may  be  possessed  thereof  (the  goods 
and  chattels)  for  the  recovery  thereof,  or  both  the 
said  remedies  may  be  pursued  at  the  same  time,  if  the 
case  so  require,  until  the  end  be  fully  attained. 

It  will  be  observed,  that,  by  this  act,  not  only  the 
exerutor  may  be  compelled  to  give  surety,  and  a 
preventive  be  thus  provided  against  his  waste  and 
mismanagement  of  the  estate,  but  the  sureties  in  an 
administration  are  enabled  to  obtain  an  indemnity 
against  their  bond,  or  to  terminate  their  responsibility 
ior  the  administrator's  fature  conduct,  by  his  discharge 
from  office. 

By  the  second  section  of  the  said  act  it  is  farther  pro- 
vided, that  in  all  cases  where  a  return  of  nulla  bona 
shall  have  been  made  by  the  sheriff  of  the  proper 
county,  to  an  execution  against  any  such  executors 
or  administrators,  their  sureties  shall,  on  notice  there- 
of, unless  they  can  show  goods  or  chattels,  lands  or 
tenements  in  some  other  county,  which  may  be  seized 
and  taken  in  execution  by  a  testatum/im  facias,  to 
satisfy  the  same,  be  liable  to  pay  the  amount  of  the 
debt  and  costs  therein,  in  actions  brought  against  them 
on  the  said  bonds,  and  such  further  proof  and  evidence 
in  support  thereof,  as  by  law  would  have  entitled  the 
suitor  or  suitors  to  recover  his,  her,  or  their  demand 
of  the  said  executors  or  administrators,  de  bonis  pro- 
priis:  provided  such  suits  shall  be  instituted  against 
the  sureties  within  seven  years  after  the  date  of  the 
respective  bonds,  and  the  whole  amount  of  the  sums 


312  SUIT  AGAINST  EXECUTORS.  j  BOOK  iv, 

of  money  to  be  recovered  thereon  shall  not  exceed  the 
penalties  of  the  bonds  respectively. 

This  section  is  obscure:  and  in  the  case  of  the 
Commonwealth  vs.  Bryan  et  Al.  an  attempt  was  made 
to  consider  it,  as  forming  a  limitation  to  suits  upon 
administration  bonds  generally.  But  the  Supreme 
Court  determined  otherwise.  The  Chief  Justice  in 
that  case  says,  "  I  have  given  the  words  of  the  law, 
and  certainly  it  is  an  obscure  paragraph.  I  shall  there- 
fore give  it  a  construction,  so  far  as  is  necessary  to 
decide  the  case  before  us,  and  no  farther.  It  sure- 
ly cannot  have  been  intended,  as  a  general  Act,  of 
Limitation,  barring  all  suits  against  the  sureties  on 
administration  bonds,  unless  commenced  within  seven 
years  from  the  date.  If  such  had  been  the  intention, 
we  must  suppose  that  there  would  have  been  some 
saving  for  infants  and^mes  covert.  In  most  of  these 
bonds  infants  are  interested,  and  it  ought  not  to  be 
intended,  that  the  Legislature  overlooked  or  neglect- 
ed them,  unless  it  be  plainly  expressed.  But  it  is  not 
so  expressed.  On  the  contrary,  the  whole  section 
looks  to  cases  where  nulla  bona  has  been  returned  to 
an  execution  against  an  executor  or  administrator; 
that  is,  as  I  understand  it,  an  execution  against  the  es- 
tate of  the  testator  or  intestate,  in  the  hands  of  the 
executor  or  administrator.  Now  no  such  execution 
has  been  issued  in  the  present  case,  nor  does  its  nature 
admit  of  it.  It  is  a  demand  by  the  children  who  are 
entitled  to  a  distributive  share  of  Thomas  Btllingtons 
estate;  and  in  no  form  of  action  could  these  children 
have  an  execution  to  be  levied  on  the  estate  of  the 
intestate.  The  demand  is  immediately  against  the 


CHAP,  n.]  SUIT  AGAINST  EXECUTORS.  313 

administrators  in  their  own  right,  for  not  settling  the 
estate  and  distributing  it  according  to  law;  and  any 
execution  which  the  plaintiffs  could  sue  out  on  a  judg- 
ment against  them,  would  be  levied  on  their  own  es- 
tate, and  not  on  the  estate  of  Thomas  Billington.  It 
is  a  case ,  therefore,  not  within  the  words  or  meaning 
of  the  Act  of  Assembly,  and  consequently  the  action 
is  not  barred  by  it." 

With  the  greatest  respect  for  the  Court,  we  would 
venture  to  remark  on  this  opinion,  and  to  suggest  that 
the  sense  of  the  second  section  of  the  act  of  1797  has 
been  misconceived. 

The  first  and  second  sections  of  that  act  are  in- 
tended to  provide  a  remedy  against  executors  or 
administrators  who  shall  waste  or  mismanage  the 
estates  of  their  decedents.  By  the  first  the  Orphan's 
Court  is  empowered  to  supersede  such  executors  or 
administrators,  on  their  neglect  or  refusal  to  give 
the  security  which  the  court  may  require,  and  to 
proceed  against  them  as  in  cases  of  contempt;  and 
the  succeeding  administrator  is  authorized  to  pro- 
ceed at  law  against  them,  to  compel  them  to  deliver 
over  and  pay  to  their  successor,  all,  &c.  which  came 
to  their  hands,  and  to  account  for  all  and  every  the 
goods,  &c.  which  have  been  previously  administered, 
and  to  pay  over  the  balance  which  shall  remain  due 
from  them  to  the  said  successor.  The  second  section 
is  designed  to  give  to  the  succeeding  administrator  a 
remedy  against  the  sureties  of  such  superseded  exe- 
cutors and  administrators  upon  the  administration 
bond.  It  was  perhaps  very  doubtful  whether  an  ad- 
ministrator thus  appointed  could  have  proceeded  on 

R  r 


314  SUIT  AGAINST  EXECUTORS.  [BOOK  rv. 

the  bond,  and  whether  a  neglect  or  refusal  to  deliver 
to  such  administrator  the  chattels,  deeds,  evidences 
and  securities  of  the  decedent,  or  to  account  to  him 
for  the  property  previously  administered,  or  to  pay 
over  the  balance  due  from  him,  were  breaches  of  the 
condition  of  the  administration  bond.  But  in  giving 
this  new  remedy  the  legislature  have  required,  that 
an  effort  should  be  made  to  obtain  satisfaction,  by  ex- 
ecution against  the  superseded  executor  or  admi- 
nistrator. But  «if  such  effort  failed  by  reason  of  nul- 
la  bona  returned  by  the  sheriff,  the  sureties  in  the 
bond  became  liable,  unless  they  showed  goods  and 
chattels,  lands  or  tenements  of  such  superseded  execu- 
tor or  administrator  in  some  other  county.  Yet  in 
order  to  recover  against  the  sureties,  the  plaintiff,  who 
would  be  the  substituted  administrator  must  make  such 
proof  in  support  of  his  action,  as  would  have  enabled 
him  to  recover  his  demand  of  such  executor  or  ad- 
ministrator, de  bonis  propiis. 

If  this  view  of  the  two  sections  of  the  act  be  cor- 
rect, it  follows,  that  the  execution  to  be  returned  nulla 
bona  is  not  against  the  estate  of  the  decedent,  but 
against  the  superseded  executor  or  administrator,  at 
the  suit  of  the  substituted  administrator,  and  that  no 
limitation  is  made  to  suits  on  administration  bonds  by 
this  act,  except  in  cases  of  superseded  executors  or 
administrators.  Nor  is  there  any  other  act  creating 
such  limitation,  unless  it  be  that  of  4th  April  1798  (a) 
which  provides,  "  That  it  shall  not  be  lawful  to  com- 
mence or  maintain  any  suit  on  any  bond  or  recogni- 
zance which  shall  hereafter  be  given  or  entered  into 
'by  any  person  or  persons  as  sureties  for  any  public  of- 

(n]  3  Sal.  L.  332. 


c  HAP.  ii.]  SUIT  AGAINST  EXECUTORS.  S15 

ficer,  from  and  after  the  expiration  of  the  term  of  seven 
years,  to  be  computed,  from  the  time  at  which  the 
cause  of  action  accrued."  Yet  if  the  administrator 
may  be  considered  as  a  public  officer,  as  the  deput}'  or 
substitute  of  the  register,  there  would  be  some  dif- 
ficulty to  extend  that  character  to  the  executor,  who 
is  appointed  by  the  testator,  and  derives  no  authority 
from  the  Register. 

In  all  cases  of  promises  express  or  implied,  made 
to,  or  by  an  administrator,  after  the  death  of  the  in- 
testate the  action  lies  by  or  against  the  administrator 
personally.  Where  therefore  an  administrator  gave  a 
receipt  in  that  character  for  money  paid  to  him  by 
mistake  it  was  held  that  an  action  to  recover  it  back 
must  be  against  him  personally,  (a)  And  if  the  ad- 
ministrator in  such  a  case  have  administered  the 
money  in  payment  of  debts  of  the  intestate  without 
notice  of  the  mistake,  he  may  plead  this  matter  speci- 
ally, and  if  he  can  prove  it,  and  that  the  estate  of  the 
intestate  is  insolvent,  he  will  be  protected.  (6) 

SECTION  II. 

Of  proceedings  in  the  Orphan's  Court  against  executors 
and  administrators. 

The  most  ordinary  proceeding  against  executors 
or  administrators,  when  the  accounts  of  the  estate  are 
unsettled,  is  by  application  to  the  Orphan's  Court, 
under  the  acts  of  March,  17li3,  and  19th  April, 
1794. 

This  application  may  be  made  by  a  creditor,  for 
the  purpose  of  apportioning  the  assets,  for  obtaining 

fa)  Grier  v.  Huston,  8  S.  &  R.  402.  (6)  Ibid.  8  S,  &  R.  402. 


i 


316  SUIT  AGAINST  EXECUTORS.         [BOOKIV. 

the  aid  of  the  Court  to  compel  the  payment  of  his 
debt,  or  to  obtain  an  insight  into  the  fund,  preparatory 
to  a  suit  at  common  law:  or  it  may  be  made  by  a  le- 
gatee or  distributee,  to  recover  a  legacy,  or  to  obtain 
distribution  of  the  undisposed  residue. 

The  first  step  is  to  apply  to  the  court  by  petition, 
setting  forth,  that  more  than  one  year  has  elapsed 
since  the  granting  of  administration,  and  that  the 
executor  or  administrator  has  not  filed  his  accounts-, 
and  praying  that  a  citation  may  be  awarded  com- 
manding him  to  appear  before  the  Court,  upon  a  day 
fixed,  and  to  show  cause  then  and  there,  if  any  he 
have,  why  he  should  not  settle  the  accounts  of  his  ad- 
ministration. 

Upon  the  service  of  this  writ  the  party  usually 
files  his  account  with  the  register,  or  if  he  have  any 
reasonable  excuse,  he  appears  before  the  court  in  per- 
son, or  by  attorney,  and  obtains  further  time. 

If  the  object  be  merely  to  obtain  a  knowledge  of 
the  state  of  the  assets,  this  may  be  effected  by  an  ac- 
count stated  on  the  oath  of  the  executor  or  adminis- 
trator, and  tiled  with  the  register.  But  if  the  petition- 
er, or  the  executor  or  administrator  intends  to  submit 
the  account  to  the  Orphan's  Court,  the  register  must 
give  public  notice  of  the  settlement  of  the  account  with 
him,  and  of  the  time  at  which  it  will  be  transmitted 
to  that  court,  pursuant  to  the  9th  section  of  the  act  4th 
April,  1797,  (a)  and  the  act  of  1st  April,  1823.  (b) 

The  first  of  these  acts  provides,  that,  "  where  any 
executor,  administrator,  or  guardian  shall  have  stated 
and  filed  his  account  in  the  office  of  the  register  for 

(a)  3  Sm.  L.  300.  (6)  Pamph.  Ed.  286. 


UHAP.  ii.]          SUIT  AGAINST  EXECUTORS.  317 

the  probate  of  wills  and  granting  letters  of  adminis- 
tration for  the  proper  county,  it  shall  be  the  duty  of 
the  register,  and  he  is  hereby  required,  to  give  no- 
tice in  at  least  three  of  the  most  public  places  of  the 
said  county  to  all  legatees,  creditors,  or  other  persons 
(as  the  case  may  be)  setting  forth  that  such  executor, 
administrator,  &c.  has  filed  his  account,  and  that  the 
same  will  be  presented  to  the  Orphan's  Court  for  con- 
firmation and  allowance,  at  the  time  and  place  for  that 
purpose  appointed,  a  copy  of  which  notice  shall  also 
be  set  up  in  his  office:  and  no  such  account  shall  be 
confirmed  and  allowed  by  the  said  court,  unless  such 
notice  shall  have  been  given,  and  a  copy  thereof,  set 
up  in  the  office  aforesaid,  at  least  thirty  days  prior  to 
the  time  appointed  for  such  confirmation  and  allow- 
ance." (a) 

The  notice  required  by  this  act  having  been  found 
insufficient,  a  supplementary  act  was  passed  1st 
April,  1823,  providing  "  That  it  shall  be  the  duty  of 
the  register  of  wills  in  the  several  counties,  in  addi- 
tion to  the  notice  now  required  to  be  given  by  law  of 
the  filing  of  the  accounts  of  executors,  administrators, 
and  guardians,  and  that  the  same  will  be  presented  to 
the  Orphan's  Court  for  confirmation  and  allowance 
to  cause  such  notice  to  be  given  once  a  week,  for  at 
least  four  weeks  prior  to  the  time  appointed  for  such 
confirmation  and  allowance,  in  at  least  two  newspa- 
pers published  in  the  county,  if  such  newspapers  are 
published  therein,  but  if  there  is  only  one  newspaper 
published  in  the  county,  then  the  said  notice  shall  be 
given  in  said  newspaper,  and  the  actual  cost  of  such 

(a)  3  Sm.  L.  300. 


318  "SUIT  AGAINST  EXECUTORS.         [BOOK  iv. 

publication  to  be  paid  by  the  register,  shall  be  divi- 
ded among  the  several  accounts  to  be  presented  in 
any  one  court,  and  the  proper  portion,  and  no  more, 
shall  be  allowed  and  charged  in  ever}r  said  account,  in 
addition  to  the  compensation  now  allowed  by  law."  (a) 

The  time  appointed  for  the  confirmation,  and  allow- 
ance of  the  accounts  of  executors,  &c.  in  the  Orphan's 
Court  of  the  first  judicial  district,  is  the  third  Friday 
of  every  month. 

In  settling  the  account  with  the  register,  the  execu- 
tor or  administrator  should  produce  to  him  the  proper 
vouchers  for  his  expenditure.  The  payment  of  sums 
under  forty  shillings  may  be  proved  by  his  own  oath 
merely,  if  there  appear  no  fraud,  by  dividing  greater 
sums  into  less;  but  after  his  death  the  payment  of  such 
sums  shall  not  be  proved  by  the  oath  of  his  represen- 
tatives. (6)  The  account  is  always  settled  on  the  oath 
or  affirmation,  of  the  executor,  or  administrator,  and 
if  he  swear  falsely,  he  is  liable  to  the  penal  ties  of  per- 
jury, (c) 

On  the  day  at  which  the  accounts  are  made  re- 
turnable to  the  Orphan's  Court,  they  are  delivered, 
together  with  a  copy  of  the  notice,  by  the  register  to 
the  clerk,  who  brings  them  into  court,  where  they 
are  supposed  to  be  read.  I  say  supposed,  because  in 
practice,  they  are  not  read,  nor  any  proceedings  had 
in  relation  to  them,  except  the  general  order  of  the 
court  entered  by  the  clerk;  unless  at  the  instance  of 
a  creditor,  legatee,  distributee,  or  other  person  inter- 
ested, desirous  of  further  investigation. 

The  general  order  of  the  court  is,  that  the  "  ac- 

(o)  Pamph.  L.  286. 

(6)  Toll.  Ex.  492.  4  Burn.  EC.  L.  427.  (c)  Ib.  Ib. 


OHAP.II.J  SUIT  AGAINST  EXECUTORS.  310 

counts  having  been  read  and  examined,  be  confirmed 
and  allowed  absolutely,  unless  exceptions  thereto  be 
filed  on  or  before  the  next  stated  Orphan's  Court 
day."  If  it  be  intended  to  oppose  the  confirmation  of 
the  accounts,  and  to  enter  into  a  minute  investigation 
of  the  items,  it  is  not  usual  to  file  exceptions;  but  on 
the  day  of  their  presentation,  or  on  the  next  Or- 
phan's Court  day,  the  party  objecting,  applies  by 
petition  for  the  appointment  of  auditors,  to  audit,  ex- 
amine, and  settle  such  accounts,  and  to  make  report 
thereon  at  the  next  stated  Orphan's  Court  day,  after 
they  shall  have  audited  the  same. 

The  number  of  auditors  is  generally  fixed  by  the 
court,  with  the  concurrence  of  the  parties,  and  is  fre- 
quently three:  but  in  most  cases,  one,  is  more  conve- 
nient, and  in  all,  the  least  expensive. 

The  compensation,  of  auditors,  by  the  act  of  twenty- 
ninth  of  March,  1819,  is  not  to  exceed  two  dollars 
per  diem  each. 

The  auditors  are  mere  agents  of  the  court,  to  do 
that  which  the  court  is  unable  with  convenience  to  do 
for  themselves.  Their  duties  are  analogous  to  those 
of  a  master  of  chancery.  They  are  to  examine  the 
accounts  referred  to  them,  minutely,  and  to  state 
them  correctly:  to  make  such  allowances  to  the  exe- 
cutor or  administrator  as  by  the  facts  and  the  law, 
they  are  warranted  to  do,  and  to  charge  him  with 
such  sums  as  he  may  have  omitted  to  place  in  his 
account.  But  neither  the  auditors,  nor  the  Orphan's 
Court,  have  power  to  decide  in  whom  is  the  property 
of  a  judgment,  (a)  The  auditors  assign  the  parties  a 
day  for  hearing  their  proofs  and  allegations,  and  ad- 
fa)  Byrne  v.  Walker.  7  Senjt.  &  R.  483. 
4k 


SUIT  AGAINST  EXECUTORS.  [BOOK  iv< 

journ  from  time  to  time  as  it  shall  be  found  conve- 
nient. 

If  there  be  witnesses,  they  may  be  compelled  to 
appear  before  the  auditors  by  the  ordinary  process 
of  subpoena  from  the  Orphan's  Court.  But,  as  it  is 
doubtful  whether  the  court  can  delegate  its  power  to 
auditors  to  administer  an  dath,  it  is  advisable  to  have 
the  witnesses  sworn  in  open  court,  or  before  an  alder- 
man or  justice  of  the  peace. 

The  report  of  the  auditors  containing  an  account 
stated,  is  filed  with  the  clerk,  and  presented  to  the 
court  on  the  next  subsequent  Orphan's  Court  day, 
for  confirmation;  which  is  of  course  made  nisi,  that  is, 
unless  exceptions  be  thereto  filed  on  or  before  the 
next  stated  Orphan's  Court  day. 

After  confirmation  nisi,  either  party  may  file  ex- 
ceptions to  the  report,  setting  forth  specifically  their 
reasons  against  absolute  confirmation.  And  by  a  rule 
of  court,  the  truth  of  these  exceptions  must  be  sworn 
to,  by  the  party  or  his  attorney  taking  them.  The 
exceptions  are  heard  by  the  court  on  days  assigned 
for  argument,  and  the  report  is  confirmed  either  in 
whole  or  in  part,  or  is  totally  rejected.  In  the  two 
latter  cases  the  court  restate  the  account,  and  in  all 
they  make  a  final  decree,  (a) 

From  such  decree  an  appeal  lies  to  the  supreme 
court  as  we  have  already  seen.  But  when  the  ac- 
counts of  executors,  administrators  or  guardians  are 
finally  settled  according  to  law,  and  the  same  con- 
firmed by  the  court,  no  appeal  lies  therefrom  unless 

» 

(a)  Richard's  case.  6  Sergt.  and  R.  464- 


OHAP.II.]          SUIT  AGAINST  EXECUTORS.  321 

entered  within  one  year  after  such  confirmation.  (a) 
It  would  seem,  however,  that  to  bar  an  appeal  after  a 
year  from  a  decree  of  confirmation,  such  decree 
must  be  of  the  settlement  of  the  final  accounts,  and 
that  the  settlement  of  the  .accounts  not  final,  though 
confirmed  by  the  Orphan's  Court,  may  be  reviewed 
or  unravelled  on  an  appeal  from  the  confirmation  o 
the  final  account.  (6) 

If  this  be  the  law  it  may  be  productive  of  much 
inconvenience.  For,  in  many  cases  the  estates  of  de- 
cedents cannot  be  finally  settled  for  years;  though 
partial  accounts  are  filed  from  time  to  time,  either  at 
the  instance  of  the  parties  interested,  or  on  the  mere 
motion  of  the  executor  or  administrator,  according  to 
the  oath  of  the  one,  and  bond  and  oath  of  the  other. 
The  same  notice  is  given  of  partial  as  of  final  settle- 
ment, when  they  are  sent  to  the  Orphan's  Court  for 
confirmation;  and  they  may  be  subjected  to  the  same 
mode  of  inquiry.  After  settlement  and  confirmation 
of  partial  accounts  without  appeal,  in  the  Orphan's 
Court,  the  executor  may  become  careless  of  vouchers, 
and  in  the  lapse  of  time  important  witnesses  may  die. 

The  effect  of  the  confirmation  of  the  accounts  came 
under  consideration  in  the  Orphan's  Court  of  Phila- 
delphia county,  in  the  case  of  Judith  Bussier's  estate. 
The  case  was  this.  Daniel  Bussier,  administrator 
with  the  will  annexed,  settled  an  account  with  the 
register  which  was  confirmed  nisi,  by  the  Orphan's 
Court,  in  August  1817,  and  absolutely,  in  September 
following.  A  deficiency  of  assets  for  the  payment  of 


(a)  Act  8  Feb.  181fl.     7  Read's  L.     (6)  Richard's  case.  6   Sergt.   &  R, 
151.  4(54. 

S  S 


322  SUIT  AGAINST  EXECUTORS.  [BOOK  iv. 

debts  appearing,  an  order  was  obtained  for  the  sale 
of  real  estate,  and  a  sale  having  been  made  was  con- 
firmed. In  April  1819,  a  supplementary  account 
was  settled  with  the  register,  which  was  also  duly  and 
absolutely  confirmed  by  the  Orphan's  Court.  This 
account  exhibited  a  balance  due  to  the  estate.  In 
1822,  a  legatee  in  the  will  of  Judith  Bussier  peti- 
tioned the  court  to  appoint  auditors  to  re-examine  and 
re-settle  the  accounts  in  this  case. 

Hallowell,  president  delivering  the  opinion  of  the 
court,  said  "  I  consider  these  settlements  sacred  and 
solemn  proceedings,  not  to  be  lightly  disturbed,  other- 
wise they  would  be  of  no  use.     They  were  intended 
by  the  legislature  to  put  the  subjects  at  rest,  to  quiet 
men's  minds,  and  those  of  their  families-,  they  ought 
therefore,  especially  after  any  considerable  lapse  of 
time,  to  be  held  by  this  court  binding  upon  all  inter- 
ested, except  upon  very  solid  grounds  offered  for  re- 
view, such  as  fraud  clearly  proved  or  plain  mistake." 
This  decision  is  consonant  with  the  practice  of  the 
Courts  of  Chancery.     In  which,  an  account  stated 
though  of  many  years  standing  will  be  wholly  opened, 
if  affected  by  fraud ;  (a)  or,  if  error  can  be  shown. 
(6)  But  if  an  attempt  be  made  to  impeach  a  settled 
account,  specific  errors  must  be  shown,  because  it  is  im- 
possible for  the  defendant  to  protect  himself  against  a 
general  charge.    There  must  be  error  enough  on  the 
bill  to  show  there  is  reason  for  it;  the  plaintiff  proves 
some  of  those  errors  and  gets  a  decree  for  opening 
the  account,  (c) 

(a)  Vernon  v.  Tawdrey.  2  Atk.  119.         Madd.  81. 

1  Madd    31.  (c)  Madd.  82,  &  authorities  cited. 

(6)  Tottenson  v.  PeaL  3  Atk.  530. 


CHAP,  ii.]          SUIT  AGAINST  EXECUTORS.  323 

How  far  an  account  settled  and  confirmed  by  the 
Orphan's  Court,  is  conclusive  upon  other  courts,  of 
the  matters  therein  contained,  seems  to  be  undeter- 
mined. With  regard  to  legacies  it  has  been  decided, 
that  on  the  plea  of  want  of  assets  in  an  action  by  a 
residuary  legatee,  -against  an  executor,  a  settlement 
of  accounts  on  a  former  citation  before  the  register, 
was  not  conclusive,  and  that  by  the  words  of  the  act  of 
twenty-first  March  1772;  (a)  it  was  intended  that  new 
auditors  should  be  appointed  on  such  plea.  (6) 

The  point  was  made  in  the  case  of  Millar  v. 
Young,  (c)  but  in  that  case  the  suit  for  legacy  had 
been  commenced  before  the  confirmation  of  the  ac- 
count by  the  court.  And  though  the  Supreme  Court 
were  of  the  opinion  that  the  settlement  under  that 
circumstance  was  not  conclusive,  they  declined  to 
say  what  would  be  the  effect,  had  the  settlement  been 
made  before  the  commencement  of  the  action.  But 
in  the  case  of  J\l  Cuttoch  v.  Montgomery  (d)  the 
court  determined  that  a  legatee  is  not  concluded  by 
such  settlement,  in  which  the  executor  is  credited 
for  the  payment  of  a  legacy,  made  before  the  com- 
mencement of  the  action  for  the  legacy,  to  which  set- 
tlement the  legatee  was  not  a  party,  as  the  Orphan's 
Court  had  not  jurisdiction  of  the  matter  and  could  not 
compel  the  payment  of  a  legacy:  Nor  is  the  judg- 
ment of  the  Supreme  Court  on  appeal  from  such 
decree,  more  binding  than  the  decree  itself  (e) 
Still,  however,  the  court  declined  to  give  an 
opinion,  whether  the  decree  of  the  Orphan's  Court 

(a)  t  Sm.  L.  383.  518. 

(6)  Marriot  v.  Davy.   1  Dall.  164.  (rf)  7  Sergl.  &  R.  17. 

'•<•)  Millar  v.  Millar.    2  Sergt.  &R.         (e)  Ibid. 

' 


324  SUIT  AGAINST  EXECUTORS.  LZOOK  iv. 


would  be  conclusive  evidence  against  a  legatee,  as  to 
the  receipts  and  disbursements  on  account  of  debts 
due  to  and  from  the  testator's  estate,  funeral  expenses, 
&c.  or  whether  such  settlement  would  be  primafade, 
evidence  of  the  payment  of  the  legacy,  (a) 

But  in  an  action  for  a  distributive  share  of  a  dece- 
dent's estates  the  settlement  of  the  defendant's  admin- 
istration account,  was  determined  against  the  opinion 
of  the  court  below,  not  to  be  conclusive.  (6)  The  re- 
porters say  this  decision  was  made  after  a  very  short  ar- 
gument ;  and  the  only  reason  assigned  by  the  court  to 
support  it,  is,  that  to  hold  the  account  not  open  to  in- 
vestigation "  would  preclude  the  defendant  from 
shewing  errors  on  the  face  of  the  account,  and  would 
preclude  the  jury  from  investigating  these  errors."  It 
is  true  such  would  then  be  the  effect  of  the  decree  of 
the  Orphan's  Court,  but,  it  would  have  such  effect  in 
common  with  -the  judgment  of  every  court  in  the 
state,  rendered  on  matters  within  their  jurisdiction. 
To  hold  the  decree  of  the  court  non  conclusive,  would 
seem  to  open  the  door  to  litigation,  by  permitting  the 
account  of  the  administrator  or  executor  to  be  first 
contested  in  the  Orphan's  court  and  subsequently  in 
the  courts  of  common  law. 

The  Supreme  Court,  have,  however,  said  that  an 
account  regularly  passed  in  the  Orphan's  Court  is 
prima  facie  evidence  of  the  amount  of  the  intestate's 
estate,  and  of  the  debts  paid  by  the  administrator,  (c) 

On  the  other  hand  the  Common  Pleas  of  PhiladeL 


(a)  7  Sergt.  #  K.  17.  (c)  Dasher  v.  Leineweaver,  3  Sergt. 

(b)  Kohr  v.  Federbaff.  4  Sergt.  &  R.         &  R.  200. 
'248. 


CHAP.  it.]          SUIT  AGAINST  EXECUTORS.  325 

phia  county  have  held  the  decree  of  the  Orphan's 
Court  conclusive,  when  confirming  accounts  which 
contained  charges  not  properly  admissable  therein. 

The  case  was  this;  an  administrator,  de  bonis  non^ 
brought  an  action  against  a  former  administrator  to 
recover  a  sum  of  money  charged  in  his  accounts  for 
boarding  and  lodging  a  son  of  the  intestate.  The 
plaintiff  contended  that,  a  payment  for  the  mainten- 
ance of  a  child,  could  be  properly  made  and  charged 
by  an  administrator,-  and  that  no  confirmation  of  the 
account  could  legalize  such  payment. 

But  the  court,  Rush  president,  declared  that  they 
had  no  doubt,  whether  they  considered  the  terms  or 
the  sense  of  the  law,  or  the  universal  practice.  The 
objections  must  be  urged  in  the  Orphan's  Court, 
which  alwa}rs  afforded  opportunities  for  them.  From 
that  court's  decrees,  the  remedy  must  be  by  appeal 
to  the  Supreme  Court,  which  was  the  only  course,  (a) 

This  perhaps  is  carrying  the  sanctity  of  the  decree 
of  the  Orphan's  Court  too  far,  protecting  by  it,  pay- 
ments, made  by  the  administrator,  for  which  no  claims 
could  be  maintained  against  him. 

A  party  interested  in  the  accounts  of  an  executor 
or  administrator,  may  obtain  a  lien  upon  his  real 
estate,  for  the  balance  appearing  due  on  settlement, 
by  filing  a  transcript  of  the  amount  with  the  prothono- 
tary  of  the  Common  Pleas.  It  being  provided  by 
the  2d  section,  act  1,  April  1823,  "  That  it  shall  and 
may  be  lawful  for  the  prothonotaries  of  the  court  of 
Common  Pleas  of  the  respective  counties  of  this  com- 
monwealth, to  file  and  docket  for  the  fee  of  fifty  cents, 

(a)  Sutton  v.  Conolly.    1  Browne,  Rep.  A  pp.  Ixir. 


326  SUIT  AGAINST  EXECUTORS.  [BOOK  iv. 

certified  transcripts  or  extracts  of  the  amount  appear- 
ing to  be  due  and  in  the  hands  of  any  executor, 
administrator  or  guardian,  on  the  settlement  of  his, 
her,  or  their  accounts,  in  any  Orphan's  Court  of  this 
commmon wealth j  which  transcripts,  or  extracts,  shall 
be  a  lien  on  the  real  estate  of  such  executor,  adminis- 
trator, or  guardian,  from  the  time  of  such  entry  until 
payment,  distribution  or  satisfaction;  and  actions  of 
debt  or  scire  facias,  may  be  instituted  thereon  by  any 
person  or  persons  interested  fort  the  recovery  of  the 
whole,  or  any  part  thereof:  Provided  that  in  case  of 
an  appeal  from  the  Orphan's  Court,  the  lien  shall  be 
for  no  more,  than  for  the  amount  finally  found  due 
and  decreed,  (a) 

Is  this  lien,  it  may  be  asked,  in  the  nature  of  a  judg- 
ment? How  long  will  it  endure?  and  can  it  be  dis- 
solved except  by  payment,  or  distribution,  even  when 
it  affects  a  purchaser  from  the  executor,  administra- 
tor, or  guardian? 

SECTION    III. 

Of  remedies  for  Distributees. 

After  the  account  of  tthe  administrator  has  thus 
been  settled,  the  court  is  authorized  to  make  distri- 
bution of  what  remains  clear,  after  all  debts  and  fune- 
ral and  just  expenses  of  every  sort  first  allowed  and 
deducted,  amongst  the  wife  and  children,  or  children's 
children,  or  to  the  next  kindred  to  the  person  deceas- 
ed in  equal  degree,  or  legally  representing  their 
stocks,  and  to  compel  such  administrator  to  observe 
and  pay  the  same,  by  due  course  of  law.  (b) 

(a)  Paraph.  Ed.  287. 

(6)  Act  1794,  s.  1.  3  Sm.  L.  144.  Richard's  case.  6  Sergt.  &  R.  464. 


CHAP,  ii.]          SUIT  AGAINST  EXECUTORS.  327 

Consequently,  therefore,  the  Orphan's  Court  may 
decree  distribution,  and  may  enforce  its  decree  by 
attachment,  sequestration,  &c.  (a)  But  there  is  no 
instance  in  the  county  of  Philadelphia,  in  which  this 
process  has  been  resorted  to. 

The  usual  remedy,  for  a  distributee  is  by  action  of 
assurnpsit  against  the  administrator,  in  his  representa- 
tive capacity:  in  which  it  is  not  necessary  to  prove  an 
assumpsit  on  the  part  of  the  defendant.  (6)  And  an 
action  for  money  had  and  received,  will  lie  against 
the  executor  in  his  personal  character,  to  recover  a 
distributive  portion  of  the  testator's  estate  not  disposed 
of  by  his  last  will,  and  which  has  come  to  his  hands 
as  a  trustee,  (c) 

SECTION    IV. 

Of  Remedies  for  Legatees. 

The  remedy  for  the  recovery  of  legacies  is  given 
by  the  act  of  assembly,  twenty-first  March,  1772,  (d) 
which  provides,  that, 

"  It  may  be  lawful  for  any  person  to  whom  a  legacy 
or  bequest  of  money,  or  other  goods,  or  chattels,  have 
been  or  may  be  made,  by  the  last  will  and  testament 
of  any  other  person  legally  made,  to  commence,  sue 
and  prosecute  an  action  upon  the  case,  debt,  detinue, 
or  account  render,  as  the  case  may  require  for  such 
legacy,  after  it  becomes  due,  in  any  of  the  county 
courts  ftr  holding  of  pleas.  And  if  it  appear  that 
the  legacy  is  due,  and  there  be  sufficient  assets  in 
the  hands  of  the  executors  or  administrators,  with  the 


fa)  Wilson  v.  Wilson.  3  Binn.  559.      (c)  W 
(6)  Holsback  v.  Van  Buskirk,  adm.     (d)  1 


(c)  Wilson  v.  Wilson.  3  Bion.  559. 

Sm.  L.  383. 
'4  Dall.  147. 


:j28  SUIT  AGAINST  EXECUTORS.  [BOOKIV. 

will  annexed,  to  discharge  the  just  debts  of  the  testa- 
tor and  legacies  bequeathed,  the  plaintiff  shall  re- 
cover with  costs  of  suit.  And  by 

Sec.  III.  The  respective  courts  where  the  said 
actions  shall  be  commenced,  upon  the  plea  of  want 
of  assets  to  pay  all  the  debts,  and  legacies,  shall  ap- 
point auditors  to  examine  the  accounts  of  the  execu- 
tors and  administrators,  with  testaments  annexed,  who 
after  full  hearing  of  the  parties  at  such  times  and 
places  as  by  them  the  said  auditors,  shall  be  appoint- 
ed, with  notice  to  the  parties,  shall  report  how  the 
accounts  of  the  executors  or  administrators  do  stand, 
what  assets  shall  remain  after  the  payment  of  all  the 
debts,  and  what  part  of  the  remainder  is  the  propor- 
tion that  ought  to  go  towards  paying  of  the  plaintiff's 
legacies;  for  which  proportion  only,  unless  it  shall  be 
otherwise  provided  by  the  will;  the  court,  shall  then 
award  execution  upon  the  judgment  to  be  had  in  the 
said  suit;  which  judgments  shall  remain  a  security  for 
the  payment  of  the  remainder  of  the  said  legacies  and 
costs,  when  sufficient  assets  for  the  payment  thereof 
come  to  the  executor's  or  administrator's  hands.  And 
where  any  exceptions  shall  be  taken  by  either  of  the 
parties  to  the  report  of  the  auditors,  it  shall  and  may 
be  lawful  for  the  court,  in  which  the  action  shall  be 
depending  on  hearing  of  the  parties,  to  correct  and 
amend  any  mistakes  or  errors,  which  may  happen  in 
the  accounts  so  to  be  reported.* 

*  If  in  a  suit  before  a  justice  of  the  peace,  an  executor,  or  administra- 
tor, shall  declare  after  judgment  against  him,  that  he  has  not  sufficient 
assets  to  satisfy  such  judgment,'  the  justice  must  transmit  the  record  to  the 
prothonotary  of  the  Common  Picas  to  be  entered  on  his  docket*,  and  such 
court  shall  adjudge  and  decree  thereon,  and  appoint  auditors  to  ascer- 
tain and  apportion  the  assets  according  to  law,  as  in  other  cases.  Act  of 
20th  March,  1810.  5  SOT.  L.  164. 

"  JHRpL* 

, 


CHAP,  ii.]  SIT  IT  AGAINST  EXECUTORS.  329 

But  if  the  probate  of  the  will  be  suspended  by  ap- 
peal, an  action  will  not  lie  against  an  executor  for  a 
legacy,  nor  will  a  subsequent  confirmation  of  the  will 
make  the  action  good,  (a) 

An  action  for  a  legacy  when  charged  upon  land, 
may  be  brought  against  the  devisee  or  terre- tenant: 

*/  ~  c?  / 

but  the  executor  should  be  a  party  to  such  suit,  or  at 
least  should  have  notice,  wi  h  liberty  to  appear  and 
plead  that  the  real  estate  of  the  testator  was  not  more 
than  sufficient  to  satisfy  his  debts.  (6)  But  the  judg- 
ment should  be  so  entered  as  to  charge  the  land  and 
not  the  persons  of  the  defendants,  (c)  And  if  the  tes- 
tator charge  the  legacy  upon  an  estate  tail  created  by 
the  will,  a  sale  of  such  estate,  under  the  judgment,  will 
break  the  entail,  and  pass  a  fee  simple  to  the  pur- 
chaser, (d) 

This  action  is  sustained  by  the  court  on  the  ground 
that  there  being  no  court  of  Chancery  here,  there 
was  a  necessity  for  it,  in  order  to  recover  the  legacy. 

"  T  speak,''  says  C.  J.  Tilghman,  "  of  legacies  not 
within  the  provision  of  our  act  of  assembly;  legacies 
charged  upon  land,  and  not  payable  out  of  the  person- 
al estate.  But  it  has  been  said  that  there  is  no  neces- 
sity for  this  kind  of  action,  because  the  legatee  may 
support  an  ejectment  for  the  land,  out  of  which  the 
legacy  is  payable.  If  he  may,  it  must  be  also  from 
necessity,  because  the  land  is  not  devised  to  him, 
either  directly  or  indirectly:  and  if  we  are  to  have  re- 
course to  some  action  from  necessity,  it  will  be  best 
to  adopt  that  which  is  best  suited  to  the  nature  of  the 

(a)  Hanse  v.  Scaly.  6  Binn.  405.   '  and  R.  416. 

(b)  Cause  v.  Wile).  4  Sergt.  and  R.     (c)  Ibid.  Ibid. 

509.     Brown  v.  Turner.  4  Sergt.     (d\ |  Cause  v.  Wiley,  i  Sergt.&'.R.50<>. 

T   t 


330  SUIT  AGAINST  EXECUTORS.         [BOOK  iv. 

case.  What  we  are  in  want  of,  is  a  mode  for  raising 
a  sum  of  money  out  of  land.  This  may  be  done  by  an 
action  demanding  the  money,  and  not  the  land,  by 
virtue  of  which,  the  land  may  be  sold.  But  this  can- 
not be  done  by  ejectment.  For  what  is  the  legatee  to 
do,  after  he  has  recovered  possession  of  the  land  in 
ejectment?  He  has  no  title  to  the  fee;  he  has  no  right 
to  sell;  he  only  holds  the  land  as  security  for  the  le- 
gacy. Is  he  to  keep  an  account  of  the  profits,  and  hold 
only  until  he  receives  satisfaction  for  the  legacy  and 
interest?  This  is  involving  him  in  a  most  inconvenient 
transaction,  and  not  answering  the  intention  of  the 
testator,  which  was  that  the  legatee  should  have  the 
money  and  not  the  land." 

"  We  have  had  occasion  to  consider  this  matter,  in 
the  case  of  Brown,  &c.  v.  Furer  &c.  (a);  and  although 
the  point  was  not  absolutely  decided,  yet  the  court 
strongly  intimated  its  opinion,  that  when  a  legacy  was 
charged  upon  the  land,  the  legatee  might  support  an 
action  against  the  executor,  and  terre-tenant,  the 
judgment  in  which  might  be  executed  on  the  land 
without  affecting  the  persons  of  the  defendants.  In 
the  argument  of  that  case,  a  precedent  was  cited  of  an 
action  brought  by  a  legatee,  against  the  executor  and 
terre-tenant,  in  the  case  of  Patterson  v.  M'Ccvusley's 
executors,  &c.  in  the  court  of  Common  Pleas  of  Lan- 
caster county,  and  the  declaration  was  said  to  have 
been  drawn  by  Mr.  Burd,  the  late  prothonotary  of 
this  court.  It  would  seem  proper  that  the  executor 
should  be  made  a  party  to  the  suit,  or  at  least  should 
have  notice,  with  liberty  to  appear  and  plead,  that  the 

(<i)4.  S.  &R.213. 


CHAP.  ii.  SUIT  AGAINST  EXECUTORS.  331 

real  estate  of  the  testator  was  not  more  than  sufficient 
to  satisfy  his  debts-,  because  the  whole  real  estate  be- 
ing assets  for  the  payment  of  debts,  it  was  not  in  the 
testator's  power  to  exempt  it  from  that  payment;  and 
if  there  was  no  surplus,  the  legacies  would  fall." 

"  The  public  interest  demands,  that  there  should  be 
some  certain  remedy  for  the  recovery  of  legacies 
charged  upon  lands.  This  necessity  has  long  been 
felt,  and,  I  am  of  opinion,  that  the  courts  of  law  have 
it  in  their  power  to  give  relief,  and  that  relief  was  ac- 
tually given,  in  the  action  of  Sarah  and  Mary  Prew  v. 
William  Wiley  and  his  wife.  By  virtue  of  the  judg- 
ment in  that  action,  the  estate  of  the  testator  was  sold 
to  satisfy  the  legacies  given  to  his  daughters/' 

It  seems  to  be  yet  unsettled,  how  far  legacies  are 
chargeable  upon  the  lands  of  the  testator. 

From  the  decisions  of  the  Supreme  Court,  it  may  be 
inferred  that  legacies  are  so  chargeable  in  the  fol- 
lowing cases. 

I.  Where  the  testator  bequeaths  pecuniary  lega- 
cies, and  has  no  personal  estate,  and  leaves  the  rest 
and  residue  of  his  estate,  real  and  personal,  to  a  desig- 
nated legatee. 

Thus,  where  A,  seized  of  a  tract  of  land,  and  hav- 
ing no  personal  estate,  bequeathed  several  pecuniary 
legacies  to  different  persons,  and  "  all  the  rest  and  re- 
sidue of  his  estate,  real  and  personal,"  he  gave  to  his 
son,  whom  he  appointed  executor,  and  who  after  the 
testator's  death  entered  upon  the  land.  The  plaintiff 
having  obtained  a  judgment  against  the  son,  the  land 
was  sold  to  satisfy  the  judgment,  and  the  question  was, 
whether  the  legacies  were  a  charge  upon  the  land  or 


332  SUIT  AGAINST  EXECUTORS.          [BOOK  iv. 

not.  It  was  held,  that  nothing  was  given  to  the  resi- 
duary legatee,  but  what  remained  after  the  payment 
of  the  legacies,  and  that  these  were  a  charge  upon  the 
testator's  real  estate,  and  that  the  money  in  the  sher- 
iffs hands,  must  be  first  applied  to  their  payment.(a) 

II.  If  the  testator  blend  his  real  and  personal  es- 
tate in  a  general  devise  of  the  residue,  the  legacies 
are  charges  upon  the  lands. 

As  where  A,  bequeathed  certain  pecuniary  lega- 
cies, and,  leaving  personal  estate,  but  insufficient  for 
the  payment  of  his  debts  and  legacies,  devised  the 
rest,  residue  and  remainder  of  his  estate,  real  and 
personal,  whatsoever  and  wheresoever  to  the  guar- 
dians of  the  poor,  &c.  (6)  The  words,  "  rest  and  resi- 
due," were  held  to  mean  what  was  left  after  the  pay- 
ment of  debts  and  legacies. 

III.  In  marshalling  the  assets,  a  court  of  Chancery 
will  endeavour,  that  every  claimant  on  the  assets  of 
the  deceased  shall  be  satisfied,  so  far  as  that  purpose 
can  be  effected  by  any  arrangement  consistent  with 
the  nature  of  the  respective  claims  upon  the  assets. 
It  has  therefore  been  long  settled,  that  where  a  claim- 
ant has  more  than  one  fund  to  resort  to,  and  another 
claimant  has  only  one,  the  first  shall  resort  to  that  fund 
on  which  the  second  has  no  lien.  Thus,  if  a  specialty 
creditor,  whose  debt  is  a  lien  on  the  real  assets, 
receive  satisfaction  out  of  the  personal  assets,  a  sim- 
ple contract  creditor  shall  stand  in  his  place  as  to  the 
real  (c)  So,  where  lands  are  subject  to  the  payment 

(a)    Nichoels  v.   Postlethwaite.  2.  Binn.  525. 

Dall.  131.  (c)  2Cha.  ca.  4.  1  Vern.  445.  1  Eg. 

(6)  Witman  v  Norton.  6  Binn.  395.  ca.  ab.   144.  2  Vern.  763.  2  Atk. 

Hassancleaver    v.    Tucker.     2  436. 


CHAP,  ii.]  SUIT  AGAINST  EXECUTORS.  333 

of  all  the  debts,  a  legatee  shall  stand  in  the  place 
of  a  simple  contract  creditor,  satisfied  from  the  person- 
al assets,  (a) 

In  Pennsylvania,  lands  are  liable  to  the  payment 
of  all  debts;  and  upon  the  above  equity  principle, 
the  pecuniary  legatees  may  resort  to  the  lands  for 
the  amount  of  the  personal  estate  paid  in  discharge  of 
the  debts. 

And  in  such  case  the  legacies  would  be  a  charge  on 
the  lands  by  operation  of  law,  and  it  would  seem 
therefore  that  the  legatee  should  be  permitted  to 
bring  action  against  the  executor  and  terre-tenant. 

It  yet  remains  to  be  settled,  whether  the  balance 
of  pecuniary  legacies  remaining  unpaid  after  the  ex- 
haustion of  the  personalty  may  be  charged  on  land 
where  the  real  and  personal  estate  were  not  blended 
in  the  will,  nor  any  "  rest  and  residue"  bequeathed. 
As  where  A  having  real  and  personal  estate,  be- 
queaths a  pecuniary  legacy,  greater  than  the  personal 
estate  after  payment  of  debts,  but  makes  no  devise  of 
his  real  estate,  which  descends  according  to  the  pro- 
visions of  the  intestate  law. 

If  the  executor  promise  to  pay  a  legacy  and  have 
assets,  he  will  be  personally  bound,  the  assets  being  a 
sufficient  consideration  to  charge  him  de  bonis  pro- 
priis.  Thus  where  an  executor  promised  to  pay  a  le- 
gacy, and  after  died,  and  an  action  of  assumpsit  was 
brought  against  his  administrators,  the  declaration 
averring  that  assets  sufficient  to  pay  all  debts  and  le- 
gacies had  come  to  the  hand  of  the  executor,  it  was 
held  that  the  plaintiff,  the  legatee,  had  a  right  to  re- 
cover, (b)  A  confession  of  judgment  by  an  executor 

(a)  3  P.  Will.  323.  (5)  Clark  v.  Herring,  5  Binn.  33. 


334  SUIT  AGAINST  EXECUTORS.  [BOOK  iv. 

or  administrator  is  an  admission  of  assets  to  the  amount 
of  the  debt,  (a) 

If  the  obligee  in  a  joint  and  several  bond  appoint 
one  of  the  administrators  of  one  obligor  having  assets 
to  be  one  of  his  own  executors,  the  debt  is  paid,  and 
the  surviving  obligor  discharged.  The  law  is  the 
same  where  the  obligee,  in  his  life-time,  obtains  seve- 
ral judgments  against  the  surviving-  obligor,  and  the 
representatives  of  the  deceased  obligor,  (b) 

(a)  Griffith  v.  Chew,  exr.  of  Chew,  8  S.  &R.  17. 
(6)  Ibjd. 


THE  LAW  OF  DECEDENTS. 


BOOK  V. 

OF  DESCENTS,  AND  THE  DISTRIBUTION  OF   REAL 
AND  PERSONAL  ESTATES. 


CHAPTER  I. 

4 

OF   THE  PERSONS   ENTITLED  TO   DISTRIBUTION. 
SECTION   I. 

Of  the  persons  entitled  to  distribution. 

The  English  law  of  descents  was  never  wholly 
in  force  in  Pennsylvania.  For  although  by  the  6th 
section  of  the  royal  charter,  it  was  provided,  that "  the 
laws  for  regulating  and  governing  property  with- 
in the  province,  as  well  for  the  descent  and  enjoy- 
ment of  lands,  as  likewise  for  the  enjoyment  and  suc- 
cession of  goods  and  chattels,  shall  be  and  continue  the 
same,  as  they  shall  be,  for  the  time  being  by  the  ge- 
neral course  of  law  in  the  kingdom  of  England,  until 
the  said  laws  should  be  altered  by  William  Penn,  his 
heirs  or  assigns,  and  by  the  freemen  of  the  said  pro* 
vince,  their  delegates  or  deputies,  or  the  greater  part 
of  them;  yet  upon  the  organization  of  the  Proprietary 
government,  4th  December,  1682,  the  right  of  primo- 
geniture, according  to  the  English  law,  was  abolished, 


33G  OF  DISTRIBUTION.  [BOPK  v. 

and  the  real  estate  made  divisible  among  the  chil- 
dren of  the  decedent,  (a)  Nor  was  this  principle  ever 
departed  from.  It  was  confirmed  by  the  laws  of  1683 
and  1684.  The  law  of  the  latter  year  gave  to  the  el- 
dest son  a  double  share,  and  broke  in  upon  that  canon 
of  descent  which  forbids  the  lineal  ascent  of  estates, 
by  directing  a  moiety  to  pass  to  the  parents  and  a 
moiety  to  the  governor,  in  case  of  the  death  of  an  in- 
testate leaving  no  wife,  child,  brothers,  or  sisters. 

The  act  of  1 705  divided  the  real  estate  of  an  intes- 
tate equally  among  his  widow  and  children,  or  the 
survivors  of  them,  as  tenants  in  common:  if  the  lands 
produced  rents  or  annual  profits,  the  widow  might 
claim  her  dower  at  common  law  therein;  if  the  intes- 
tate left  a  widow  and  no  children,  the  wife  took  one 
moiety,  and  the  heir  at  law  the  other:  if  he  left  nei- 
ther wife  nor  children  living  at  his  death,  or  if  the 
children  all  died  in  their  minority  without  issue,  the 
estate  descended  to  the  heir  at  common  law. 

By  this  act,  the  lineal  ascent  of  the  estate  was  ta- 
ken away,  and  by  the  supplementary  act  of  1764,  the 
estate  of  the  widow  in  all  the  decedent's  lands  was  de- 
clared to  be  for  life  only.  These  laws  continued  in 
force  until  the  year  1794,  when  the  existing  system 
of  descents  was  framed-,  and  this  system  has  been  im- 
proved by  subsequent  acts.  But  all  cases  not  em- 
braced by  the  intestate  laws,  are  by  virtue  of  the 
charter  of  Charles  II,  and  the  common  law  subject 
to  the  English  rules  of  descent,  (fc) 

The  following  synopsis  of  the  intestate  system  of 
Pennsylvania  is  taken  from  the  Law  Register  of  Mr. 

(a)  Great  Law.  Chap.  (6)  Cresoe  v.  Laidley,  2  Binn.  279. 


CHAP,  i.]  OF  DISTRIBUTION.  337 

Griffiths,  to  which  we  have  added  the  judicial  deci- 
sions and  the  proper  references. 

I.  If  the  intestate  have  children  only,  they  take 
equally  as  tenants  in  common;  if  children  and  the  is- 
sue of  children,  such  issue  represent  their  parents 
and  take  equally  among  them,  what  their  parents 
would  have  taken  if  living,  (a) 

If  the  intestate  leave  grand-children  only,  they  take 
equally  as  tenants  in  common,  if  grand-children,  and 
the  issue  of  grand-children,  such  issue  represent 
their  parents  as  aforesaid,  and  so  as  to  lineal  descend- 
ants in  the  remotest  degree.  (6) 

II.  If  the  intestate  leave  only  brothers  or  sisters, 
or  both,  they  take  equally  as  tenants  in  commonj  if 
any  be  dead,  their  issue  represent  them,  and  take 
what  the  parent,  if  living,  would  have  taken,  (c) 

III.  If  there  be  a  father  or  mother,  and  brothers 
or  sisters,  the  father  takes  all  during  his  life;  (d)  if  no 
father,  the   mother  all,   during  her  life;  (e)  and  af- 
ter his  or  her  death,  the  brothers  and  sisters,  and  the 
issue  of  deceased  brothers  and  sisters  take  as  they 
would  have  done  if  the  father  or  mother  had  not  sur- 
vived the  intestate.  (/) 

On  the  death  of  a  person  intestate  leaving  no  widow 
nor  lawful  issue,  but  a  father  or  mother,  and  brothers 
and  sisters,  the  remainder  in  fee  vests  in  the  brothers 
and  sisters  under  the  6th  section  of  the  act  of  1794,  at 
the  same  instant  the  life  estate  passes  to  the  father  or 
mother,  (gj 

(a)  Smith's  L.  145,  act  1794,  sec.  3.     (e)  3  Smith.  L.  298,  act  1797,  sec.  5 
(6)  Ibid.  //)  3  ism.  L.  146,  298. 

(c)  2  Srn.  L.  1 46,  sec.  C.  (?)  M'Comb  v.  Dilio,  6  S.  &  R.  304. 

(d)  Ibid. 

U  U 


338  OF  DISTRIBUTION.  [BOOK  r. 

If  an  estate  real  or  personal  come  to  an  intestate 
from  the  father,  it  must  be  divided  between  the  bro- 
thers and  sisters  as  if  the  mother  were  dead.  "  This 
depends  on  the  construction  of  the  acts  of  19th  of 
April,  1794,  sec.  7,  and  of  4th  April,  1797,  sec.  5. 
By  the  act  of  April,  1794,  it  is  provided  that  in  case 
a  person  shall  die  seized  or  possessed  of  real  or  per- 
sonal estate,  which  came  to  him  on  the  part  of  his  fa- 
ther, leaving  no  widow,  nor  lawful  issue,  nor  father, 
but  a  mother,  the  said  estate  shall  descend,  pass,  and 
be  enjoyed  or  possessed  as  if  such  person  Jiad  survived 
his  mother.  In  such  case  then  it  was  the  clear  intent 
to  exclude  the  mother  from  any  share  of  the  child's 
property,  and  the  reason  was  that  she  had  already 
been  sufficiently  provided  for  from  her  husband's  es- 
tate. But  it  is  agreed  that  although  the  mother  be 
excluded,  yet  it  is  not  said  who  shall  take,  because 
the  case  put  in  the  act  does  not  suppose  that  the  in- 
testate left  brothers  and  sisters.  Granting,  for  argu- 
gument's  sake,  this  to  be  the  case,  we  must  consider 
the  act  of  1797,  which  was  made  for  the  express  pur- 
pose of  providing  for  the  omissions  of  the  act  of  1 794. 
By  the  5th  section  of  the  act  of  1797,  "  When  any 
person  shall  die  seized  or  possessed  of  real  or  per- 
sonal estate,  leaving  neither  widow,  nor  lawful  issue, 
father  or  mother,  but  brothers  and  sisters  of  the  whole 
blood,  the  estate  shall  descend  to,  and  be  vested  in 
such  brothers  or  sisters  as  tenants  in  common  in  equal 
parts.  Now  the  mother  being  considered  as  dead  by 
the  act  of  1794,  the  case  falls  directly  within  the  act 
of  1797."  Per  C.  J.  Tilghman  in  Harris  &  al  v.  Hays 
et  al  6  Binn.  423, 


CHAP,  i.]  OF  DISTRIBUTION.  339 

An  estate  will  be  considered  to  have  come  on  the 
part  of  the  father  in -the  sense  of  the  intestate  laws, 
as  well  where  it  is  devised,  by  a  paternal  ancestor,  as 
in  case  of  descent,  (a) 

IV.  If  there  be  no  brothers  or  sisters,  or  their  re- 
presentatives, the  father  takes  the  whole  in  fee,  or  in 
case  ke  be  dead,  and  the  mother  living,  then  she  takes 
the  whole  in  fee;  unless  the  estate  came  to  the  intes- 
tate from  the  part  of  the  mother,  in  which  case  the  fa- 
ther shall  not  inherit-,  and  if  from  the  part  of  the  father 
the  mother  shall  not  inherit,  but  it  shall  be  consider- 
ed as  if  the  intestate  had  survived  such  father  or  mo- 
ther. (6) 

And  it  is  a  governing  principle  of  the  intestate 
laws  that  all  who  are  not  of  the  blood  of  the  ancestor 
from  whence  the  estate  came,  are  excluded  from  the 
inheritance  however  remote  in  degree  the  descent 
may  be.  Therefore  the  real  estate  of  an  intestate,  co- 
ming on  the  part  of  his  father  descends  to  the  next  of 
kin  on  the  father's  side,  to  the  exclusion  of  all  his  ma- 
ternal kindred,  (c) 

The  decision  of  this  case  over-ruled  the  case  of 
Walker  v.  Smith,  (d)  in  which  it  was  held  that  the 
next  of  kin  of  equal  degree  whether  of  paternal  or 
maternal  kindred,  should  take  equally. 

V.  If  there  be  no  lineal  descendants,  nor  father, 
mother,  sisters,  or  brothers  of  the  whole  blood  or 
their  issue,  then  the  brothers  and  sisters  of  the  half 
blood  and  their  issue,  shall  take  in  preference  to  more 

(a)  Shippen  v.  Izaril,  1  S.  &  R.  222.     (c)  Bevan  v.  Taylor,  7  £'.  &  R.  397. 
(fc)  Act  of  1794,  sec.  6.  Act  1797,     (rf)  3  Yeates,  430. 
sec.  5. 


340  OF  DISTRIBUTION.  [BOOK  v. 

remote  kindred  of  the  whole  blood-,  unless  the  estate 
came  to  the  intestate  by  descent,  devise,  or  gift  of 
some  of  his  ancestors,  in  which  case  all  who  are  not 
of  the  blood  of  such  ancestor  are  excluded,  (a) 

VI.  If  there  be  no  widow,  nor  lineal  descendants, 
nor  father,  nor  mother,  sisters,  or   brothers  of  the 
whole  or  half  blood,  or  issue  of  such  brothers  or  sis- 
ters, the  inheritance  descends  to,  and  is  equally  divi- 
ded among  the  next  of  kin  of  equal  degree  of  or  unto 
the  intestate,  and  if  any  of  such  kindred  be  dead  their 
issue  represent  them,  (b) 

VII.  Posthumous  children  inherit  in  like  manner 
as  if  born  in  the  life  time  of  the  father,  (c) 

VIII.  (d)  If  there  be  a  widow  and  lineal  descend- 
ants she  takes  one-third,  if  no  lineal  descendants,  she 
takes  one-half  of  the  real  estate  during  her  life:  and 
that  not  as  dower  at  common  law,  but  under  the  statute 
of  distributions,  and  in  lieu  and  satisfaction  of  dower. 

IX.  In  all  cases  of  descent,  not  particularly  provi- 
ded for  by  the  statutes,  the  common  law  is  to  govern. 
This  was   determined   in  the   cases  of  Johnson  v. 
Haines  lessee  (e)  and  Cresoe  v.  Laidley.  (/) 

In  the  first  case  the  intestate  died,  leaving  the  chil 
dren  of  several  brothers  and  sisters,  and  a  grand-child 
of  one  brother,  but  leaving  neither  father,  brothers, 
nor  sisters.  This  case  was  omitted  in  the  act  of  1794, 
but  was  provided  for  in  the  act  of  1797.  In  giving 
their  opinion,  the  court  said  "  The  statutory  system  of 
distributing  real  estates,  in  cases  of  intestacy  is  an  en- 
croachment on  the  common  law,  and  whenever  such 

(a)  Ibid.  sec.  1 1 ,  3  Sm.  L.  148.  (J)  Ibid.  sec.  3,  4,  13. 

(6)  Act  of  1793,  sec.  12.  Sra.  L.  148.     (e)4  Dall.  64. 
(c)  Ibid.  sec.  10.  (/)  2  Binn.  279.    ' 


CHAP,  i.]  OF  DISTRIBUTION.  341 

encroachment  takes  away  a  right,  which  would  other- 
wise be  vested  in  an  heir  at  law,  the  operation  of  the 
statute  should  not  be  extended  further  than  it  is  car- 
ried by  the  very  words  of  the  legislature,  the  heir  at 
common  law,  takes  in  all  cases  not  specifically  enume- 
rated by  the  acts  of  assembly.'3 

The  case  of  Cresoe  v.  Laidley  was  this.  "  Samuel 
Eldridge  died  intestate,  seized  of  lands  in  fee  simple, 
which  had  come  to  him  by  descent  from  his  father. 
He  left  living  at  the  time  of  his  death,  a  mother,  a 
brother  of  the  half-blood  on  the  part  of  his  mother, 
a  maternal  grandfather  and  grandmother,  a  paternal 
great-aunt,  and  several  cousins,  children  of  paternal 
great-uncles  and  great-aunts.  The  question  was, 
whether  this  case  is  included  in  either  of  the  acts  di- 
recting the  descent  of  real  estates  of  persons  dying 
intestate." 

"  On  the  part  of  the  plaintiff  it  was  contended  that 
this  case  is  included,  not  within  the  words,  but  the 
spirit  and  intent  of  the  12th  section  of  the  act  19th 
April,  1794.  That  section  is  in  these  words.  '  The 
real  and  personal  estate  of  any  person  dying  intestate, 
in  case  such  person  leave  neither  widow  .nor  lineal  de- 
scendant, nor  father,  or  mother,  or  brother,  or  sister 
of  the  whole  or  half-blood,  or  lawful  issue  of  any  bro- 
ther or  sister  of  the  whole  or  half  blood,  shall  descend 
to,  and  be  divided  amongst  the  next  of  kin  of  equal 
degree,  &c.'  The  case  tfefore  the  court  differs  from 
this  section  of  the  law  in  two  respects.  The  intestate 
left  a  mother  and  a  brother  of  the  half  blood.  The 
plaintiff's  counsel  get  over  this  by  endeavouring  to 
prove  from  other  parts  of  the  law,  that  neither  the 


342  OF  DISTRIBUTION.  [BOOK  v. 

mother  or  brother  of  the  half  blood  on  the  part  of 
the  mother,  can  take  any  thing  in  this  case,  where  the 
estate  descended  to  the  intestate  from  his  father.  This 
being  the  case,  they  think  it  unreasonable  that  their 
existence  should  prevent  the  next  of  kin  from  taking. 
They  construe  the  words  '  mother  or  brother  of  the 
half  blood,'  by  adding  to  them  the  words  'capable  of 
taking  any  thing  under  this  act.'    We  think  that  the 
principles  on  which  the  law  must  be  construed  were 
fixed  by  the  case  of  Johnson  v.  Haines,  4  Dall.  64,  de- 
cided by  the  unanimous  opinion  of  the  high  court  of 
errors  arid  appeals.  The  rule  there  laid  down  by  C.  J. 
JYTKean,  who  delivered  the  opinion  of  the  court,  was 
that  the  heir  at  common  law  should  take  except  in  the 
specified  cases  enumerated  in  the  act.  The  case  there 
decided  was  full  as  hard  as  the  present.  There  could 
not  be  a  doubt  but  the  legislature  would  have  included 
it  in  the  act  of  19th  April,  1794,  if  it  had  occurred  to 
them.  But  the  decision  was  founded  on  wise  principles. 
It  tended  to  produce  certainty,  which  is  of  the  utmost 
consequence  in  the  law  of  descents.     We  may  easily 
know  the  law,  when  it  is  established  that  the  heir  at 
law  takes  in  every  case  not  specified  in  the  acts  of  as- 
sembly: but  there  will  be  no  end  to  difficulties  if  we 
attempt  to  supply  the  omission  of  the  acts  by  insert- 
ing what  we  may  suppose  to  have  been  intended  by 
the  legislature.     There  is^another  powerful  reason 
for  the  strict  construction  of  the  act  of  19th  April, 
1794.     It  was  discovered  to  be  defective  in  many  re- 
spects, to  remedy  which,  the  act  of  4th  April,  1797, 
was  passed.     That  act  included  the  case  which  had 
occurred  in  Johnson  v.  Haines,  and  many  other  omit- 


CHAP,  i.]  OF  DISTRIBUTION.  343 

ted  cases,  but  it  made  no  alteration  in  the  12th  sec- 
tion of  the  1st  act,  on  which  the  present  question 
turns.  Now  the  latter  act  being  made  for  the  express 
purpose  of  supplying  the  defects  of  the  first,  it  must 
be  supposed  that  the  first  act  was  examined  with 
great  attention,  and  every  alteration  introduced  which 
was  thought  necessary.  I  make  no  doubt  but  many 
cases  are  still  unprovided  for  because  they  were  un- 
seen. As  they  occur,  from  time  to  time,  they  may 
be  included  in  new  laws,  if  it  shall  be  judged  expe- 
dient. In  the  mean  time  the  heir  at  common  law 
will  take  in  all  such  cases.  Upon  the  whole,  we  are 
clearly  of  opinion  that  the  plaintiff  is  not  entitled  to 
recover,  because  she  has  riot  brought  her  case  within 
either  of  the  acts  of  assembly."  Per  C.  J.  Tilghman. 
In  the  distribution  of  the  personalty  of  an  intestate, 
the  widow  takes  one-third,  if  there  be  lineal  descend- 
ants: one-half  if  there  be  not;  the  residue  is  distribu- 
ted in  like  manner  as  real  estate;  except,  that  in  the 
case  where  the  father  or  mother  would  take  only  an 
estate  for  life  in  the  real  property,  they  take  the  per- 
sonal estate  absolutely;  (#)  and  the  brothers  and  sis- 
ters of  the  half  blood  take  equally  with  the  whole 
blood, 

(a)  Act  1794,  Robinson  v.  Martin,  2  Yeates,  526. 


344  POWER  OF  THE  ORPHAN'S  COURT.    [BOOK  v. 

CHAPTER  II. 

OF    THE  MANNER  OF  MAKING  DISTRIBUTIONS. 
SECTION    1. 

Of  the  powers  of  the  Orphans  Court  in  relation  to  dis- 
tribution. 

The  distribution  of  the  real  estate  of  the  intestate, 
among  his  representatives,  is  confided  to  the  Orphan's 
Court  of  the  several  counties,  by  the  act  of  1794,  and 
its  supplements. 

By  the  22d  section  of  that  act  it  is  provided,  "  That 
it  shall  be  lawful  for  the  Justices  of  the  Orphan's 
Court  of  the  county  in  which  the  lands  of  the  intestate 
shall  be,  upon  a  petition  to  them  presented,  by  the 
widow,  or  relict,  or  by  any  children  of  such  intestate, 
if  of  age,  or  by  his  or  her  heirs,  or  by  their  guardian 
or  guardians,  or  next  friends,  if  under  age,  to  appoint 
seven  or  more  persons,  indifferently  chosen  on  be- 
half and  with  consent  of  the  parties,  or  where  the 
parties  cannot  agree,  to  award  an  inquest  to  make 
partition  according  to  the  purport  and  true  mean- 
ing of  this  act,  and  upon  the  return  made  by  the  per- 
sons so  to  be  appointed,  or  of  the  inquisition  so  to  be 
taken,  to  give  judgment,  that  the  partition  thereby 
made,  do  remain  firm  and  stable  for  ever;  and  that  the 
costs  arisfhg  on  such  suit  or  suits,  be  paid  by  the  par- 
ties concerned. 

Provided  nevertheless  that  where  any  estate  in  lands, 
tenements,  or  hereditaments,  cannot  be  divided  among 
the  children,  or  widow  and  children  of  the  intestate, 


CHAP,  ii.]  OF  DISTRIBUTION.  345 

without  prejudice  to,  or  spoiling  of  the  whole,  the 
said  seven  or  more  persons,  or  the  said  inquest,  as  the 
case  may  be,  shall  make  a  just  appraisement  thereof 
to  the  Orphan's  court  of  the  county,  where  such  lands 
or  tenements  shall  be,  and  thereupon  the  said  court 
may,  but  not  otherwise,  order  the  whole  to  the  eldest 
son;  if  he  shall  accept  it,  or  any  of  the  other  sons  suc- 
cessively, upon  the  eldest  son's  neglect  or  refusal;  or 
if  there  be  no  sons,  or  all  the  sons  neglect  or  refuse, 
then  to  the  eldest  daughter  of  the  said  intestate,  and 
on  her  neglect  or  refusal,  to  any  other  of  the  said 
daughters  in  the  same  manner  respectively,  he,  she, 
or  they,  or  some  friend  legally  authorized  for  him, 
her,  or  them,  paying  to  the  other  children  of  the  in- 
testate, their  equal  and  proportionate  part  of  the  true 
value  of  such  lands  and  tenements,  as  upon  a  just  ap- 
praisement thereof  made  as  aforesaid,  or  giving  good 
security  for  the  payment  thereof  in  some  reasonable 
time  not  exceeding  twelve  months,  as  the  said  Or- 
phan's Court  shall  limit  and  appoint,  and  the  person 
or  persons  to  whom,  or  for  whose  use,  payment  or  sa- 
tisfaction shall  be  so  made  for  their  respective  parts 
or  shares  of  the  deceased's  lands  in  manner  aforesaid 
shall  be  for  ever  barred  of  all  right,  title,  or  demand 
of,  into,  or  out  of  the  intestate's  land  aforesaid.  But 
where  the  widow  is  living,  and  the  whole  premises 
shall  be  adjudged  and  ordered  to  the  eldest  son,  or 
any  of  the  children,  the  wife  of  the  person  so  deceas- 
ed shall  not  be  entitled  to  the  sum  at  which  her  pur- 
port or  share  of  the  estate  so  as  aforesaid  ordered  to 
the  eldest  son  or  any  of  the  children  shall  be  valued, 
but  the  same,  together  with  interest  thereof,  shall  be 

x  x 


346  OF  DISTRIBUTION.  [BOOK  v. 

and  remain  charged  upon  the  premises,  and  the  in- 
terest thereon  shall  be  annually  and  regularly  paid 
by  the  eldest  son  or  such  other  child,  to  whom  the 
said  lands  shall  be  adjudged,  his^  or  her  heirs  or  as- 
signs, holding  the  said  lands,  to  be  recovered  by  such 
mother  by  distress  or  otherwise  as  rents  in  this  com- 
monwealth are  usually  recovered,  to  his  or  her  said 
mother  during  her  natural  life,  which  the  said  mother 
shall  receive  and  accept  in  lieu  and  full  satisfaction  of 
her  dower  at  common  law:  and  at  the  decease  of  said 
mother,  the  said  principal  sum,  so  as  aforesaid  valued 
and  adjudged,  shall  be  paid  by  the  said  eldest  son  or 
other  child  aforesaid  to  whom  the  said  lands  shall  be 
adjudged,  his  or  her  heirs  or  assigns  holding  the  pre- 
mises, and  shall  be  distributed  and  divided  by  the  said 
court,  to  and  amongst  the  said  children  of  her  husband 
and  their  representatives,  according  to  the  said  act.  (a) 
Provided  also,  that  when  it  shall  appear  by  the  re- 
port of  seven  or  more  persons,  chosen  by  the  parties, 
or  where  they  camot  agree,  by  an  inquest,  appoint- 
ed as  aforesaid,  that  the  real  estate  of  any  intestate 
will  conveniently  accomodate  more  than  one  child, 
the  said  court  may  settle  the  same  on  as  many  of  the 
children,  (preference  being  always  given  to  the  el- 
dest sons,)  as  it  will  accomodate,  without  prejudice  to 
or  spoiling  the  whole,  or  in  case  the  intestate  left 
no  issue,  the  same  may  be  assigned  to  so  many  of 
the  next  of  kin  to  the  intestate  in  equal  degree,  as  such 
estate  will  conveniently  accomodate,  without  preju- 
dice to  or  spoiling  the  whole,  (preference  being  given 
to  the  male  heirs  among  such  as  are  of  kin  in  equal 

(a)  3Sm.  L.  15J. 


•  HAP.  it.]  OF   DISTRIBUTION.  347 

degree;)  and  if  there  be  no  sons,  then  to  so  many  of 
the  daughters  as  the  same  will  accomodate  as  afore- 
said, the  said  children  or  next  of  kin  to  whom  the  said 
estate  shall  be  so  assigned,  or  some  friend  for  them, 
paying  or  securing  to  be  paid,  to  the  other  children 
of  the  intestate,  their  respective  parts  of  the  •  value 
thereof  in  the  same  manner  as  is  herein  before  direct- 
ed, where  one  of  the  children  takes  the  whole  of  the 
real  estate:  and  the  said  court,  in  directing  the  said 
payments  to  be  made  or  securities  to  be  given,  hav- 
ing regard  to  the  value  of  the  estate  so  assigned  to  the 
children  or  next  of  kin  respectively,  (a) 

And  by  the  act  of  first  April  1805,  where  any  per- 
son or  persons  have  heretofore  died,  or  shall  hereafter 
die  intestate  seized  of  real  estate,  lying  in  one  tract, 
or  in  one  or  more  tracts  adjoining  each  other,  on  the 
line  or  lines  of  any  county  or  counties  in  this  com- 
monwealth, whereby  part,  or  parts  of  the  said  tract  or 
adjoining  tracts  may  be  in  two  or  more  of  the  said 
counties  adjoining,  it  shall  and  may  be  lawful  in  case 
of  an  application  to  the  Orphan's  Court  of  the  county 
in  which  the  principal  mansion  is  situate,  for  an  in- 
quest to  make  partition  or  appraise  the  real  estate  of 
such  intestate,  to  issue  their  writ  to  the  sheriff  of  the 
county  within  the  jurisdiction  of  said  court,  specifying 
the  lands  in  the  said  county,  and  the  county  or  coun>- 
ties  adjoining,  of  which  a  partition  or  valuation  is  in- 
tended to  be  made,  and  thereupon  it  shall  and  may 
be  lawful  for  the  said  sheriff  to  summon  an  inquest, 
according  to  law,  to  divide  or  value  the  said  lands,  in 

?,  Sm.  L.  1.">2. 


348  OF  DISTRIBUTION.  [BOOK  v. 

the  same  manner  as  if  the  whole  were  within  his  baili- 
wic,  and  upon  the  return  thereof  to  the  Orphan's 
Court,  out  of  which  such  writ  issued,  the  said  court 
may  further  proceed  thereon,  as  if  all  the  said  lands 
were  in  the  county  and  within  the  jurisdiction  of  said 
court,  and  to  decree  partition  thereof,  and  to  allot  the 
whole  to  any  one  of  the  heirs,  according  as  the  inqui- 
sition may  be  returned  to  them,  as  fully  and  as  amply 
as  they  now  may  or  can  do,  where  real  estate  is  whol- 
ly in  any  one  county,  and  any  recognizance  or  recog- 
nizances taken  by  them,  in  pursuance  of  such  pro- 
ceeding, shall  be  valid  and  effectual  to  all  intents  and 
purposes,  and  the  final  decree  of  such  court  thereon 
shall  have  the  same  operation  to  vest  the  title  of  f?uch 
estate,  in  the  heir  or  heirs  who  may  accept  of  the 
same,  as  any  decree  of  any  Orphan's  Court  in  any 
county  within  their  jurisdiction  heretofore  has  had. 
Provided  that  an  exemplification  of  the  proceedings, 
which  may  at  any  time  hereafter  be  had,  shall  with- 
in twenty  days  after  the  final  decree  therein  be  deli- 
vered to  the  clerk,  or  clerks  of  the  Orphan's  Court,  in 
such  adjoining  county  or  counties,  in  which  the  appli- 
cation shall  not  have  been  made,  and  in  which  any 
parts  of  the  said  lands  are,  or  may  be  situated,  which 
clerk  or  clerks  shall  enter  the  same  of  record  on  the 
Orphan's  Court  docket  of  his  proper  county,  at  the 
joint  expenses  of  all  parties  concerned  therein,  (a) 

And  by  section  8th  of  the  act  of  4th  April  1797,  (6) 
the  like  proceedings  may  be  had  where  the  intestate 
leaves  no  children,  or  their  legal  representatives,  both 
in  making  partition,  or  where  the  estate  cannot  be  di- 

(a)  4  Sm.  L.  24§.  (f>)  3  Stn.  L.  299. 


CHAKJI.]  OF  DISTRIBUTION.  349 

vided  without  prejudicing  or  spoiling  the  whole,  by 
directing  an  appraisement,  and  ordering  the  whole 
to  the  eldest  brother  or  his  issue,  if  any  of  such  issue 
shall  then  be  of  full  age,  if  he  or  she  shall  accept, 
or  to  any  other  of  the  brothers  or  their  issue  succes- 
sively, if  any  such  issue  shall  then  be  of  full  age,  upon 
the  refusal  by  the  eldest  brother  or  his  issue,  or  if 
there  be  no  brothers  or  their  issue,  or  they  all  neglect 
or  refuse,  then  to  the  eldest  sister  or  her  issue,  if  any 
such  issue  shall  then  be  of  full  age,  in  the  manner 
and  on  the  conditions  directed  by  the  act,  to  which  this 
is  supplementary,  with  respect  to  the  children  of  an 
intestate;  and  the  same  mode  of  dividing,  assigning, 
and  appraising  estates,  shall  be  observed  in  all  cases, 
whereby  this  act,  or  the  act  to  which  this  is  supple- 
mentary, estates  are  to  be  vested  in  several  persons 
as  tenants  in  common. 

Under  these  acts,  provision  was  made  for  the  par- 
tition of  the  estates  of  intestates,  among  the  represen- 
tatives in  the  remotest  degree.  But  in  case  the  estate 
could  not  be  devided,  and  the  heirs  refused  to  take  at 
the  valuation,  the  parties  were  constrained  either  to 
await  the  mutual  consent  of  each  other  to  dispose  of 
the  estate,  or  to  sell  out  by  undivided  interests,  at 
great  disadvantage.  For  remedy  whereof, 

It  was  enacted  by  an  act  passed  second  April.  1804. 
that  when  any  person  hath  died,  or  may  hereafter  die 
intestate,  seized  of  real  estate  in  this  commonwealth, 
subject  to  partition  or  valuation,  as  prescribed  by 
the  act  to  which  this  is  a  supplement,  which  real  es- 
tate cannot  be  divided,  but  hath  been  or  shall  be  ap- 
praised, and  none  of  the  children  or  other  legal  re- 


350  OF  DISTRIBUTION.  [BQOKV. 

presentatives,  to  grant  a  rule  upon  all  the  heirs  or 
other  persons  interested  in  such  estate  to  shew  cause 
on  the  first  day  of  the  next  regular  session  of  the  said 
court,  why  the  estate  of  the  intestate  should  not  be 
sold.  Provided,  a  copy  of  such  rule  be  served  on 
such  of  the  heirs  and  representatives  interested  as 
reside  in  the  county,  where  the  estate  lies,  by  deli- 
vering it  to  the  person,  if  of  age,  or  his  or  her  guar- 
dian, if  a  minor,  or  by  leaving  a  copy  thereof  at  the 
usual  place  of  abode,  at  least  twenty  days  before  the 
time  of  holding  the  court,  as  aforesaid,  and  that  notice 
shall  be  given  to  such  of  the  heirs,  or  other  legal  re- 
presentatives as  live  out  of  the  county  in  which  the 
estate  lies,  by  publishing  a  copy  of  the  said  rule,  cer- 
tified by  the  clerk  of  the  Orphan's  Court,  in  the  news- 
paper printed  in  the  county,  if  any  be  there  printed, 
and  if  not,  in  the  newspaper  published  nearest  to  such 
county,  at  least  four  weeks  previous  to  the  court;  and 
if  cause  be  not  shewn  to  the  said  court  according  to 
the  said  rule,  it  shall,  and  may  be  lawful  for  the  said . 
court,  and  they  are  hereby  enjoined  and  required,  on 
due  proof  of  notice  of  the  aforesaid  rule  being  given, 
to  make  an  order  or  decree  commanding  the  execu- 
tor or  executors,  administrator  or  administrators,  (as 
the  case  may  be)  to  expose  the  real  estate  of  the  in- 
testate to  public  sale,  on  the  premises,  on  a  day  cer- 
tain, upon  such  terms  as  the  court  may  think  proper 
to  direct,  of  all  which  ,the  executor  or  executors,  ad- 
ministrator or  administrators  shall  give  at  least  ten 
day's  notice,  by  advertisement  in  the  newspaper 
printed  in  such  county,  if  any  there  be ,  and  if  none 


CHAP,  w.}  OF  DISTRIBUTION.  351 

then  in  that  nearest  to  the  county  where  the  land 
lies,  (a) 

And  by  section  6  of  the  act  of  seventh  April  1807; 
"  When  partition  is  made  of  an  intestate's  real  estate, 
and  a  part  is  allotted  to  each  of  his  children  or  repre- 
sentatives, in  case  there  be  a  widow  of  the  intestate 
living  and  entitled  to  a  part  of  the  said  real  estate  du- 
ring her  life,  it  shall  be  the  duty  of  the  inquest  or  re- 
ferees making  partition  to  estimate  the  value  of  the 
said  part,  and  to  apportion  the  same  among  the  re- 
spective shares  of  the  children  or  representatives; 
and  upon  confirmation  thereof  by  the  Orphan's  Court, 
the  same  shall  remain  as  a  charge  upon  the  said  shares, 
and  the  interest  thereof  shall  be  annually  and  regu- 
larly paid  to  such  widow,  and  may  be  recovered  by 
action  of  debt,  or  by  distress,  as  rents  are  usually  re- 
covered in  this  commonwealth:  and  where  the  estate 
of  the  intestate  is  divided  into  fewer  parts  than  there 
are  children  or  representatives,  the  same  proceedings 
shall  be  had  to  estimate  and  apportion  the  widow's 
part  among  the  said  parts,  which  shall  remain  a  charge 
thereon,  and  the  interest  thereof  shall  be  paid  and 
may  be  recovered  as  aforesaid j  and  upon  the  decease 
of  any  such  widow,  the  whole  value  of  the  said  pur- 
part  shall  be  distributed  among  all  the  said  children 
or  representatives  in  proportion  to  their  respective 
shares  according  to  law.  (b) 

And  by  the  7th  section  of  the  same  act,  "  Where 
the  estate  of  an  intestate  is  divided  into  a  fewer  num- 
ber of  parts  than  there  are  children  or  representa- 
t  ives,  and  any  one  or  all  of  the  said  parts  is,  or  are 
refused  to  be  taken  by  the  children  or  represents - 

(<0  4  Sm.  L.  1R4.  .  (1)}  4  Sin.  L.  400. 


352  OF  DISTRIBUTION.  [BOOKV. 

tives,  the  like  proceedings  shall  be  had  to  sell  the 
part  so  refused,  as  is  directed  in  case  of  an  appraise- 
ment of  the  whole,  in  and  by  an  act  passed  the  second 
day  of  April  1804,  entitled  "  A  further  supplement 
to  the  act  entitled  "  An  act  directing  the  descent  of 
intestate's  real  estates,  and  distribution  of  their  per- 
sonal estates,  and  for  other  purposes  therein  men- 
tioned; and  any  such  sale  or  sales  heretofore  made  by 
the  decree  of  any  Orphan's  Court  is,  and  are  hereby 
ratified  and  confirmed,  (a) 

And  by  the  8th  section,  in  order  to  give  the 
younger  children  or  representatives  of  an  intestate  an 
opportunity  of  accepting  or  refusing  the  estate  of  the 
intestate  in  case  of  an  appraisement  or  partition  into 
fewer  parts  than  there  are  children  or  representa- 
tives, the  Orphan's  Court  of  the  different  counties  of 
this  commonwealth  are  authorised  upon  application, 
to  grant  a  rule  upon  any  of  the  children  or  repre- 
sentatives, to  come  into  court  within  a  certain  time, 
and  to  accept  or  refuse  the  same:  a  copy  whereof 
shall  be  served  on  the  parties  personally  ten  days 
before  the  return  thereof,  in  case  he,  she,  or  they  re- 
side within  the  county,  or  if  the}'  reside  out  of  the 
county  a  copy  of  the  rule  shall  be  printed  in  at  least 
one  newspaper  printed  in  the  proper  county,  or  if 
there  be  none  therein,  then  in  some  adjacent  county, 
and  in  one  daily  newspaper  of  the  city  of  Philadel- 
phia, for  the  space  of  one  month  before  the  return 
thereof;  and  in  case  he,  she,  or  they  do  not  come  in 
according  to  the  said  rule,  and  accept  or  refuse,  the 
court  shall,  and  may  direct  the  same  to  be  offered  to 
the  next  child  or  representative  in  order,  (b) 

(fl)4S.  L.  400.  (6)  Ibid.  401. 


CHAP,  n.]  OF  DISTRIBUTION.  353 

And  by  section  9th,  "  where  any  person  shall  die 
intestate,  leaving  lands  or  tenements  in  more  than  one 
county  in  this  commonwealth,  if  after  inquisition  held, 
any  of  the  legal  representatives  of  such  intestate 
shall  accept  of  the  real  estate  upon  the  valuation 
thereof,  in  any  one  county,  such  person  shall  not  have 
the  right  of  preference,  or  elect  to  take  the  real  es- 
tate, or  any  part  thereof  in  any  other  county,  until 
all  the  other  heirs  or  legal  representatives  shall  refuse 
to  take  the  same  at  such  valuation,  (a) 

And  by  the  2d  section  of  the  act  of  26th  March, 
1808,  "  the  publication  of  the  notice  required  in  and 
by  the  8th  section  of  the  foregoing  act  after  an  ap- 
praisement or  partition  of  an  intestate's  estate,  shall 
be  deemed  sufficient  if  published  in  at  least  one  news- 
paper printed  in  the  proper  county,  or  if  there  be 
none  therein,  then  in  the  county  nearest  thereto 
wherein  a  newspaper  may  be  published,  and  at  least 
once  a  week  for  four  weeks  successively  prior  to  the 
return  thereof,  in  one  daily  newspaper  in  the  city  of 
Philadelphia.  And  on  any  application  for  a  valuation 
or  partition  of  an  intestate's  estate,  where  any  of  the 
children  or  legal  representatives  reside  out  of  the 
county  wherein  the  lands  lie,  notice  in  like  manner 
may  be  given  where  personal  notice  cannot  be  given 
as  required  by  the  said  section,  of  the  time  and  place 
of  executing  the  order  of  the  court,  and  taking  the 
inquisition  thereon.  And  if  upon  the  return  of  any 
such  inquisition,  all  the  children  or  legal  representa- 
tives of  the  intestate  shall  appear  in  court  personally 
or  by  guardian,  or  attorney  in  fact,  duly  constituted, 

(«)4S.  L.  401. 

Y  y 


354  OF  DISTRIBUTION.  [BOOK  v. 

and  refuse  to  accept  of  the  estate,  or  any  part  there- 
of if  divided,  at  the  valuation  thereof,  and  shall  unan- 
imously desire  the  same,  or  any  part  thereof,  to  be 
sold  by  the  order  of  the  court,  the  said  court  may  or- 
der or  decree  the  sale  thereof  without  granting  any 
rule  to  shew  cause  why  the  said  estate  or  part  thereof 
should  not  be  sold,  any  practice  to  the  contrary  not- 
withstanding; and  to  remove  doubts,  all  proceedings 
heretofore  had,  and  decrees  made  in  the  Orphan's 
Court,  in  pursuance  of  the  act  entitled  "  A  further 
supplement  to  the  act  entitled  "  an  act  directing  the 
descent  of  intestate's  real  estate,  and  distribution  of 
their  personal  estates,  and  for  other  purposes  therein 
mentioned,''  passed  April  2d,  1804,  or   of  the  act 
which  is  hereby  amended,  where  notice  has  been  giv- 
en in  the  newspapers  of  the  application  for  a  parti- 
tion or  valuation,  or  whereby  the  consent  of  the  le- 
gal representatives,  a  rule  to  shew  cause  has  been 
waved,  if  otherwise  legal,  are  thereby  declared  to 
be  valid,  (a) 

SECTION  II. 

Of  ilie  Inquest  for  Partition. 

Under  the  foregoing  acts  of  assembly,  parties  in- 
terested in  the  estate  of  an  intestate,  may  apply  to 
the  Orphan's  Court  by  joint  petition,  or  any  one  of 
them  may  apply  separately.  The  joint  petition  is 
usually  adopted  when  the  parties  have  agreed  upon 
seven  persons  to  make  partition  or  appraisement  of 
the  estate ;  and  the  prayer  of  the  petition  is,  that  the 
court  will  appoint  the  persons  named  in  the  petition, 

(6)4S.L.  519. 


CHAP,  it.]  OF  DISTRIBUTION.  355 

to  make  partition  of  the  estate  of  the  decedent, 
to,  and  among  his  representatives,  according  to  law; 
and  if  it  cannot  be  divided,  to  make  valuation  there- 
of. The  petition  by  one  of  the  parties  is  resorted  to, 
where  it  is  inconvenient  to  obtain  the  assent  of  all  the 
parties  to  the  appointment  of  seven  persons,  or  where 
the  parties  refuse  to  join  in  the  petition.  In  this  case, 
the  prayer  of  the  petition  is,  that  the  court  will  award 
an  inquest  to  make  partition,  &c. 

It  would  seem  to  have  been  the  intention  of  the  le- 
gislature to  empower  the  Orphan's  Court  to  make  par- 
tition among  the  parties  in  interest  in  all  cases  of  in- 
testacy. But  the  Supreme  Court  have  doubted  whe- 
ther the  words  of  the  act  embrace  the  case  of  an  in- 
testate dying  without  issue,  leaving  a  widow,  and  fa- 
ther, and  collateral  heirs.  This  doubt  arose  in  the  case 
of  Young  v.  Bickell,  (a)  which  was  as  follows: "  Henry 
Bickell  died  intestate  and  without  issue  seized  ot  real 
estate  in  fee  simple,  leaving  a  widow,  Sarah,  now  the 
wife  of  John  Young,  a  father,  John  Bickell,  one  bro- 
ther, and  one  sister.  John  Young  petitioned  the  Or- 
phan's Court  of  Dauphin  county  for  a  partition  of  the 
real  estate  of  Henry  Bickell,  between  himself  in  right 
of  his  wife,  and  the  representatives  of  the  said  Henry 
Bickell.  In  pursuance  of  an  order  of  the  Orphan's 
Court,  an  inquisition  was  held,  and  the  real  estate  di- 
vided into  two  parts,  (said  to  be  equal)  one  of  which 
was  assigned  to  the  said  John  Young  in  right  of  his 

wife,  and  the  other  to  John  Bickell.  the  father.   This 

% 

partition  was  confirmed  by  decree  of  the  Orphan's 
Court,  from  which  an  appeal  was  made  to  the  Sn- 

(a)  1  S.  &  R.  467. 


356"  OF  DISTRIBUTION.  [BOOK  v. 

preme  Court.  By  the  deposition  accompanying  the 
record,  it  appeared  that  the  value  of  the  property  as- 
signed to  the  widow  was  about  -16QOJ.,  and  the  value 
of  that  assigned  to  the  father  was  5001.  but  the  rents 
they  yielded  were  equal. 

C.  J.  Tilghman  gave  the  following  opinion:  "  Se- 
veral reasons  have  been  assigned  for  the  reversal  of 
this  decree;  but  there  are  two  which  have  been  prin- 
cipally relied  upon.  One,  that  the  partition  was  ma- 
nifestly unequal;  the  other,  that  the  court  had  no  au- 
thority to  order  a  partition.  The  property  assigned 
to  Young  and  wife  is  of  three  times  the  value  of  that 
assigned  to  John  Bickell.  This  is  admitted  by  the 
Orphan's  Court.  But  as  the  two  parts  produce  at  this 
time  nearly  an  equal  rent,  the  value  of  the  fee  simple, 
is  supposed  to  be  an  immaterial  circumstance;  it  be- 
ing taken  for  granted,  that  the  brother  and  sister  of  the 
intestate,  who  are  entitled  to  the  reversion  in  fee,  can 
be  no  way  affected  by  this  partition.  If  they  are  af- 
fected the  injustice  would  be  so  great,  that  it  is  not 
pretended  that  the  partition  can  be  supported.  Sup- 
posing then  that  our  acts  of  assembly  authorized  the 
Orphan's  Court  to  make  the  partition,  it  must  be  go- 
verned altogether  by  these  acts,  and  I  can  find  no  pro- 
vision in  any  of  them,  by  which  the  portion  of  land 
assigned  to  a  widow  can  be  taken  from  her  during 
life.  The  English  statute  32  Hen.  8,  which  gives  a 
writ  of  partition  between  joint  tenants  and  tenants  in 
common,  for  years  or  for  life,  expressly  provides,  that 
it  shall  not  affect  the  interests  of  reversioners  or  re- 
mainder men.  But  that  statute  has  no  effect  on  these 
proceedings.  Now,  it  being  conceded  that  Young's 


CHAP,  ii.]  OF  DISTRIBUTION.  357 

part  is  twice  as  valuable  as  the  remaining  part,  it  fol- 
lows that  if  Mrs.  Y.  survives  J.  B.  the  reversioners 
will  be  greatly  injured,  because  instead  of  coming 
into  possession  of  one-half  of  the  estate  of  their  bro- 
ther Henry  Bickell,  according  to  their  right,  they 
will  not  have  more  than  a  fourth  part.  The  partition 
therefore  ought  not  to  stand.  With  respect  to  the 
powers  of  the  Orphan's  Court  I  do  not  wish  to  say  any- 
thing very  decided.  The  acts  of  assembly  respect- 
ing intestates,  contain  expressions  of  large  import  in 
favour  of  partition.  And  I  suppose  there  was  a  ge- 
neral intention  of  authorising  a  partition  in  all  cases 
where  real  estate  descended  to  several  persons.  Yet 
I  foresee  difficulties  in  the  present  case,  where  the 
whole  estate  goes  in  the  first  instance  to  tenants  for 
life.  It  was  therefore  to  be  wished  that  these  par- 
ties could  affect  a  partition  amicably  between  them- 
selves, or  that,  before  another  partition  is  made  un- 
der the  authority  of  the  court,  the  subject  should 
be  brought  before  the  legislature,  who  might  make 
some  provision  for  the  safety  of  the  reversioner;  for  I 
am  satisfied  that  this  exact  case  did  not  occur  to  those 
who  drew  the  several  intestate  laws,  or  they  would 
have  made  particular  provision  for  it." 

In  a  petition  for  valuation  and  partition  of  an  in- 
testate estate  all  material  circumstances  should  be 
mentioned.  If  there  are  infants  concerned,  it  should 
be  so  stated  in  order  that  the  court  may  appoint  guar- 
dians to  take  charge  of  their  interests.  A  petition  to 
the  Orphan's  Court  for  a  valuation  is  not  like  an  ad- 
versary suit  at  common  law  where  an  infant  defend- 
ant must  appear  by  guardian  or  it  is  error.  But  the 
want  of  a  guardian  is  certainly  an  important  circum- 


358  OF  DISTRIBUTION.  [BOOKV. 

stance,  which  makes  it  incumbent  on  the  court  to 
look  well  to  the  proceedings,  and  to  lend  a  ready  ear 
to  the  complaint  of  the  infant,  who  thinks  himself  ag- 
grieved. Yet  the  want  of  a  guardian  will  not  of  itself 
render  the  proceedings  void,  if  it  appears  that  the  in- 
fant was  represented  in  fact  at  the  time  of  the  valua- 
tion as  where  the  interests  of  the  infant  are  superin- 
tended by  a  grandfather,  who  was  present  at  the  ta- 
king of  the  inquisition,  (a) 

The  petition  should  set  forth  the  names  of  all  the 
persons  entitled  to  shares  and  the  purparty  of  each, 
and  in  this  respect  should  pursue  the  form  of  a  decla- 
ration in  partition;  but  the  proceedings  are  not  rever- 
sible on  account  of  an  omission  in  this  particular,  (b) 
And  it  should  also  bring  into  the  view  of  the  court 
the  whole  real  estate  of  the  intestate,  as  there  cannot 
be  several  inquisitions  of  it  by  parcels.  Any  omis- 
sion of  the  real  estate  of  the  decedent  however  in- 
considerable the  value,  will  be  fatal  on  appeal,  unless 
such  omission  should  be  cured  by  the  return  of  the 
inquest  embracing  the  estate  omitted  in  the  peti- 
tion, (c) 

The  presenting  of  a  petition  has  generally  been 
followed  by  an  award  of  an  inquest  as  a  matter  of 
course,  without  further  inquiry  on  the  part  of  the 
court.  This  practice  has  been  reproved  by  C.  J. 
Tilghman,  in  delivering  his  opinion  in  the  case  of  Rex 
v.  Rex,  3  S.  &  R.  535.  "  The  Orphan's  Court,"  says 
he,  "  award  an  inquest  on  the  petition  of  George  Rex, 
without  notice  to  the  widow,  or  other  children.  It 
apjpears  that  a  very  irregular  practice  has  crept  into 

(a)  Elliot  v.  Elliot,  5  Binn.  I.  (c)  Rex  r.  Rex,  3  S.  &  R.  533. 

6)  Walton  v.  Willis,  1  Dall.  352. 


CHAP,  ii.]  OF  DISTRIBUTION.  359 

the  Orphan's  Court.     They  generally  award  an  in- 
quest as  a  matter  of  course.    The  act  of  assembly  di- 
rects, that  upon  the  petition  of  the  widow,  or  any 
child,  the  court  shall  appoint  seven  or  more  persons 
to  make  partition;  or  where  the  parties  cannot  agree, 
to  award  an  inquest  to  make  partition.  The  courts  in 
many  of  the  counties  have  considered  the  exhibition 
of  a  petition  for  an  inquest,  amounting  to  a  dissent  of 
the  choice  of  seven  or  more  persons.  And  as  any  one 
of  the  parties  may  dissent  to  a  choice,  and  insist  on 
an  inquest,  the  court,  in  order  to  save  time,  have 
thought  themselves  justified  in  awarding  an  inquest 
immediately.     It  certainly  would  be  more  analogous 
to  the  rules  almost  universally  established  in  judicial 
proceedings,  either  in  law  or  equity,  to  call  the  par- 
ties into  court  in  the  first  instance.     And  if  that  were 
done,  I  doubt  not  but  they  would  often  agree  in  the 
choice  of  men,  and  thus  some  expense  would   be 
saved.     But  as  I  do  not  know  that  substantial  injus- 
tice has  been  done,  and  many  titles  must  depend  on 
the  proceedings,  which  have  taken  place  under  the 
act  of  19th  April,  1794,  I  should  not  think  myself 
warranted  in  disturbing  them.     I  understand  that  on 
the  return  of  the  inquest  every  exception  is  open, 
which  might  have  been  made  before  it  was  awarded. 
Nevertheless,  as  the  Orphan's  Court  may  alter  their 
practice  in  future  without  affecting  any  thing  which 
has  passed,  T  cannot  help  expressing  a  wish,  that  they 
would  call  all  the  family  before  them  prior  to  the 
award  of  an  inquest.  I  am  satisfied  that  good  would  of- 
ten arise  from  it."  This  opinion,  from  so  highly  respec- 
table a  source,  ought  to  regulate  the  future  practice  of 
the  Orphan's  Courts. 


'360  OF  DISTRIBUTION.         ,  [BOOKV. 

The  Orphan's  Court  is  not  precluded  from  enter- 
taining a  petition  for  partition,  in  case  of  intestacy  by 
the  pendency  of  an  action  of  partition  in  a  court  of 
common  law.  The  proceedings  in  the  two  courts 
are  essentially  different.  The  act  of  assembly  ex- 
pressly provides  for  partition  in  these  cases,  and  it 
shall  not  be  in  the  power  of  any  party  to  defeat  the 
act,  by  recurring  to  a  writ  of  partition  at  common 
law.  It  would  in  fact  be  to  repeal  the  act  as  far  as 
respects  partition,  (a) 

SECTION  III. 

Of  the  order  and  writ  of  inquest. 

Pursuant  to  the  prayer  of  the  petition,  the  court 
directs  an  ordei*  or  writ  of  inquest  to  issue. 

The  order  of  inquest  is  directed  to  the  persons 
named  in  the  petition,  and  reciting  the  death  of  the 
decedent,  his  intestacy,  the  parties  interested  in  the 
estate,  the  description  of  the  property,  commands 
them,  (due  notice  having  been  given  to  all  concerned) 
to  inquire,  1st.  whether  the  premises  with  the  ap- 
purtenances can  be  conveniently  parted  and  divided 
among  the  children  or  representatives  of  the  dece- 
dent without  prejudice  to,  or  spoiling  the  whole,  and 
if  they  can,  to  part  and  divide  the  same  accordingly-. 
2nd.  If  the  estate  can  be  so  divided,  to  inquire  how 
many  of  the  children  or  representatives  it  will  ac- 
commodate, and  to  divide  the  same  accordingly, 
and  to  make  a  valuation  of  their  several  parts. 
3d.  If  they  should  be  of  the  opinion  that  the  estate 
cannot  be  advantageously  divided  so  as  to  accommo- 

(a)  Rex  r.  Rex,  3  S.  £  R.  536. 


9HAP.H.J  OF  DISTRIBUTION.  361 

date  the  widow  and  all  the  children  and  representa- 
tives, nor  more  than  one  of  them,  they  are  then  to 
make  a  valuation  thereof. 

This  order  being  made  by  consent,  and  for  the  ac- 
commodation of  the  parties,  is  not  returnable  on  a  day 
certain:  but  a  report  is  directed  to  be  made  on  the 
next  stated  Orphan's  Court  day,  after  the  division  or 
valuation  shall  have  been  made. 

The  writ  of  inquest  is  directed  to  the  sheriff,  and  af- 
ter recital  of  the  material  facts,  in  the  petition,  com- 
mands him,  to  take  with  him  a  proper  jury,  and  by 
their  oaths  and  affirmations,  to  make  partition  of  the 
premises  therein  described,  among  the  heirs  and  re- 
presentatives of  the  intestate  according  to  law,  if  such 
partition  can  be  made,  without  injury  to  or  spoil- 
ing the  whole,  &c.  The  directions  being  substantial- 
ly the  same  as  those  given  by  the  order.  The  inquest 
should  be  composed  of  persons  who  are  without  bias 
in  favour  of  any  of  the  parties:  for  if  there  be  upon  it 
persons  connected  with  either  party,  by  blood  or  affi- 
nity, it  may  vitiate  the  proceedings  of  the  jury,  (a) 

By  the  order  and  writ,  notice  of  the  partition  is  di- 
rected to  be  given  to  all  the  parties  in  interest. 
Where  the  parties  reside  within  the  county  in  which 
the  lands  lie,  personal  notice  must  be  served  upon 
them  at  least  ten  days  before  the  execution  of  the  or- 
der or  taking  of  the  inquest,  of  the  time  and  place  of 
executing  the  order  or  taking  the  inquest.  (6)  If  any 
of  the  parties  live  out  of  the  county,  such  notice  must 
be  published  in  at  least  one  newspaper  printed  in 
the  proper  county,  or  if  there  be  none  therein,  in  the 

(a)  I.  S.  &  R.  470.  Young  v-  Bickcl.     (b)  Act  7.  A  p.  1807  sec.  7.  Act  26. 

Mar.  1808  Sec.  11. 

Z   Z 


362  OF  DISTRIBUTION.  [BOOK  v, 

county  nearest  thereto,  wherein  a  newspaper  may 
be  published,  and  at  least  once  a-week,  for  four  weeks 
successively,  prior  to  the  execution  of  the  order  or 
taking  of  the  inquest,  (a) 

When  a  writ  of  partition  is  issued,  the  sheriff  must 
summon  the  parties  to  attend;  and  if  they  do  attend, 
the  partition  must  be  made  in  their  presence.  It  is 
not  necessary,  yet  it  is  the  better  practice  to  set  out 
the  fact  in  the  return,  that  all  the  parties  had  notice: 
But  where  in  the  proceedings  of  the  court,  a  party  in 
interest  has  not  been  made  a  party  to  the  decree,  the 
presumption  of  the  law  is,  that  he  was  neither  present 
nor  summoned,  (b)  Of  the  due  service  of  such  notice 
in  case  of  an  inquest,  the  return  of  the  sheriff  is  con- 
sidered as  conclusive  evidence:  in  case  of  an  order, 
proof  of  the  service  of  notice,  and  of  publication  in  the 
newspapers,  when  requisite,  should  be  made  before 
the  court. 

In  execution  of  the  order  or  writ,  the  commission- 
ers, or  the  jurors,  in  the  latter  case,  accompanied  by 
the  sheriff,  go  personally  on  the  premises,  and  make 
the  partition  or  valuation,  (c) 

In  many  cases  where  the  real  estate  of  the  intes- 
tate is  susceptible  of  division,  a  partition  and  a  valua- 
tion of  the  several  parts  is  agreed  upon  by  his  heirs 
or  representatives;  and,  the  commissioners  or  jury 
only  give  a  legal  sanction  to  the  act  of  the  parties. 

Where  partition  is  made,  the  return  to  the  order 
or  writ,  should  contain  an  accurate  description  of  each 

(a)  Act.  7  Ap.  1807.  sec.  7,  Act  26        Messinger  v.  Kintner.  4  Binn.  97. 

Mar.  1808,  Sec.  11.  (c)  Litt.  248.  1  lost.  164. 

V  Walton  v.  Willis.  1   Dall.  353. 


CHAP,  ii.]  OF  DISTRIBUTION.  363 

part,  and  be  accompanied  by  a  draught  or  map  of  the 
premises  as  divided;  and  if  the  value  of  the  several 
parts  is  not  the  same,  the  value  of  each  part  should  be 
distinctly  set  forth,  in  order  that  the  parties  taking 
the  more  valuable  parts,  may  account  with  the  others 
for  the  difference.  It  is  not  the  practice,  however,  to 
make  partition  of  an  estate,  if  its  value  will  be  the 
least  impaired  thereby,  unless  at  the  instance  of  all 
the  parties  interested,  but  to  appraise  it,  and  return, 
that  it  cannot  be  divided  without  spoiling  or  injuring 
the  whole.  As  the  law  gives  to  the  heirs,  first  in  the 
male  and  then  in  the  female  line,  in  the  order  of  se- 
niority, the  right  to  take  the  estate  at  the  valuation, 
most  juries  consider  an  advantage  to  be  given  to  the 
eldest  heir-,  to  prevent  which,  they  appraise  the  estate 
at  the  highest  value,  which  frequently  induces  a  pub- 
lic sale,  at  which  all  the  heirs  have  an  opportunity  to 
purchase  at  the  market  value. 

The  return  to  the  writ  or  order  being  made,  is 
confirmed  nisi:  that  is,  unless  exceptions  be  filed  there- 
to, on  or  before  the  next  Orphan's  Oourt  day.  An 
opportunity  is  thus  given  to  the  parties  in  interest,  to 
review  the  proceedings,  and  to  make  their  objections,, 
if  any,  to  the  court. 

Any  departure  from  the  essential  provisions  of  the 
act,  will  vitiate  the  proceedings:  Such  as  the  want  of 
notice  to  the  parties,  of  the  time  and  place  at  which 
the  commission  or  inquest  is  to  be  held:  (a)  or  the 
valuation  of  the  estate  in  gross,  under  the  supposition, 
that  if  it  could  not  be  divided  into  as  many  parts  as 

(a)  Walton  v.  Willis.  1  Dall.  353. 


OF  DISTRIBUTION.  [BOOKY. 

there  were  children,  the  jury  had  not  power  to  di- 
vide it  into  a  less  number:  (a)  So  if  the  estate  be 
clearly  and  manifestly  undervalued.  (6)     But  this 
should  be  a  clear  case.  The  jury  are  entrusted  by  law 
with  the  valuation,  and  they  act  under  oath.  Besides 
it  is  generally  to  be  supposed,  that  they  are  better 
judges  of  this  matter  than  the  court.     Great  regard 
should  therefore,  be  paid  to  their  opinion:  Sometimes, 
however,  it  happens,  that  they  may  mistake,  and  the 
court  be  able  to  trace  the  cause  of  it.     So  if  the  jury 
neglect  to  make  provision  for  a  tenant  by  the  curte- 
sey,  (c)  and  by  consequence  for  a  widow:  or  if  there 
be  infants  interested  in  partition,  and  they  are  not  re- 
presented: (d)  or  if  the  share  assigned  to  one  of  the 
"parties  be  disproportionate;  (e)  or  if  a  will  of  ihe  dece- 
dent be  discovered,  subsequently  to  the  proceedings, 
though  the  validity  of  the  will  had  not  been  tried  by 
an  issue  from  the  register's  court,  and  though  a  reco- 
very in  ejectment  was  had  in  opposition  to  such  as- 
serted will.  (./)    And  in  case  an  infant  be  affected  by 
error,  in  the  proceedings  concerning  partition  and 
valuation  of  his  parents'  estate,  he  is  not  concluded 
from  showing  the  error,  by  his  own  or  his  guardian's 
acceptance  of  the  sum,  at  which  his  purpart,  was  va- 
lued, nor  by  his  own  acceptance  of  the  purpart  after 
he  came  of  age-,  if  he  were  then  ignorant  of  the  wrong 
done  him,  provided,  he  petitions  for  redress  as  soon 
as  the  circumstances  are  made  known  to  him.  (g) 

(a)  Rex  v.  Rex.  3  S.  &R.  533.  (e)  Bickel  v.  Young.  1  S.  &  R.  407. 

(6)  Ibid.  (/)  Spaogler  v.  Rambler.  4.  S.  &R. 

(c)  Walton  v.  Willis.  1  Ball.  353.  192. 

(a)  M .-ssinger  v.  Kintner.  4  Binn.  (g)  Elliot  v.  Elliot.  5  Binn.  1. 
97.  Elliot  v.  Ellliot.  5  Bino.  1. 


CHAP,  ii.]  OF  DISTRIBUTION.  365 

But,  it  is  not  a  valid  objection  against  confirming 
the  return  of  the  inquest,  that  the  return  does  not 
mention  certain  valuable  appurtenances  to  the  estate, 
if  the  inquest  took  them  into  view  on  their  valua- 
tion; (a)  nor  that  on  the  petition  of  one  of  the  children, 
an  inquest  was  awarded,  without  notice  to  the  other 
children,  or  to  the  widow,  (b) 

The  exceptions  to  the  return  should  be  verified  on 
oath,  or  affirmation  before  they  are  filed,  with  the 
clerk  of  the  court.  They  are  taken  up  by  the  court 
for  argument,  on  some  stated  court  day,  or  other  day 
fixed  by  the  court.  And  the  return  is  either  confirm- 
ed or  set  aside.  In  the  latter  case,  it  is  the  practice  for 
the  parties  to  commence  anew.  It  would  seem  from 
what  fell  from  the  C.  Justice  at  the  close  of  his  opi- 
nion in  the  case  of  Elliot  v.  Elliot,  as  if  the  Orphan's 
Court  in  case  of  an  error  in  the  return,  in  relation  to 
the  quantity  of  the  land,  might,  on  the  petition  of  a 
party,  many  years  after  confirmation,  direct  a  re-sur- 
vey, and  charge  the  party  who  took  the  lands,  at  the 
valuation  with  any  additional  quantity,  which  should 
be  made  to  appear,  at  the  rate  of  the  valuation,  (c) 

From  the  final  decree  of  the  court,  confirming  or 
setting  aside  the  return,  an  appeal  lies  to  the  Supreme 
Court,  at  any  time-,  no  time  having  been  prescrib- 
ed, as  in  the  case  of  the  accounts  of  executors,  \fithin 
which  an  appeal  must  be  made. 

If  the  heirs  or  representatives  are  satisfied  with 
the  partition,  after  the  decree  of  confirmation  abso*- 
lute,  each  obtains  from  the  clerk  an  exemplification 

(a)  Elliot  v.  Elliot.  5  Binn.  1.  (c)  5  Binn.  11. 

fb]  Rex  v.  Rex.  3  3.  &  R.  533. 


366  OF  DISTRIBUTION.  [BOOK  v. 

of  the  proceeding,  under  the  seal  of  the  court,  which 
is  evidence  of  his  title. 

SECTION  IV. 

Of  the  return  and  confirmation. 

The  return  to  the  order  or  writ  is,  1st.  That  the 
estate  can  be  divided  among  all  the  heirs  or  represen- 
tatives in  equal  or  in  unequal  parts;  in  the  latter  case, 
a  value  is  put  on  the  several  parts:  or  2ndly.  That  the 
estate  can  be  divided  so  as  to  accommodate  some 
of  the  heirs  or  representatives-,  in  this  case,  also  a  va- 
luation is  returned  of  each  part:  or  3dly.  That  the 
premises  cannot  be  divided,  and  that  they  are  valued 
at  a  sum  certain.  We  will  consider  these  reports  in 
their  order. 

I.  Where  the  division  of  the  estate  is  among  all 
the  heirs  in  equal  proportions,  if  the  parties  in  inter- 
est are  satisfied,  the  confirmation  is  of  course,  and  no. 
thing  further  remains  to  be  done. 

If  the  division  be  into  unequal  parts,  those  who 
take  the  larger  pay  to  those  who  have  the  smaller 
shares  the  difference  in  cash,  or  they  secure  the  pay- 
ment, to  be  made  at  such  time  as  the  court  shall  fix, 
generally  in  one  year,  by  bonds,  and  mortgage  of  the 
premises,  or  by  recognizance.  Sometimes,  under  pe- 
culiaj  circumstances,  as  where  the  estate  is  small,  the 
parties  many,  whose  mortgages  would  produce  almost 
interminable  incumbrances,  and  sometimes  with  con- 
sent of  parties,  bonds,  with  personal  surety  instead  of 
mortgages  are  directed  to  be  taken,  to  secure  the  pay- 
ment of  the  several  purparts  and  dividends.  Where 
the  purparts  are  of  considerable  value,  the  securities 


OHAI-.  ii.]  OF  DISTRIBUTION.  367 

are  usually  given  to  the  parties  themselves;  but  where 
they  are  of  small  amount,  and  there  are  many  parties 
it  is  the  practice  in  some  counties  to  make  the  secu- 
rities to  the  president,  in  others,  to  the  Common- 
wealth, and  in  others  to  the  clerk  of  the  Orphan's 
Court,  in  trust  for  all  concerned,  (a) 

II.  Where  the  estate  is  divided  into  a  less  number 
of  shares  than  there  are  heirs  or  representatives,  a 
valuation  of  each  part  is  distinctly  set  forth.  After 
confirmation,  a  rule  is  to  be  taken  by  petition  to  the 
court,  under  the  act  of  seventh  April  1807,  upon  the 
heirs  or  representatives  of  the  intestate,  to  come  into 
court  at  a  day  given,  and  accept  or  refuse  the  parts 
as  divided  at  the  valuation.  (6)  The  service  of  this 
rule  in  case  the  parties  reside  within  the  county  must 
be  personal  and  made  ten  days  before  its  return;  and 
when  the  party  lives  out  of  the  county,  a  copy  of  it 
must  be  published  in  at  least  one  newspaper  printed 
in  the  proper  county,  or  if  there  be  none  therein, 
then  in  the  county  nearest  thereto,  wherein  a  news- 
paper may  be  published,  and  at  least  once  a  week  for 
four  weeks  successively,  in  one  daily  newspaper  in 
the  city  of  Philadelphia. 

When  it  is  known  or  presumed  that  none  of  the 
heirs  or  representatives  will  take  the  estate  so  divi- 
ded at  the  valuation,  it  is  usual  to  obtain  a  rule  pur- 
suant to  the  act  of  the  s  ond  April,  1804,  section  1,  (c) 
upon  all  the  heirs,  or  other  persons  interested  in  the 
estate  to  show  cause  on  the  first  day  of  the  next  regu- 
lar session  of  the  Orphan's  Court,  why  the  estate  of 
the  intestate  should  not  be  sold.  The  service  of  this 

(a  Ke  n  v.  Franklin,  5  S.  &  R.  497.  (t)  4  Sm.  L.  184. 

(b)  Act  of  April  1807,  sec.  7. 


368  OF  DISTRIBUTION.  [BOOK  v. 

rule  is  to  be  made  where  the  heirs  or  persons  inter- 
ested reside  in  the  county  where  the  estate  lies,  by 
delivering  it  to  the  person,  if  of  age,  or  to  his  or  her 
guardian,  if  a  minor;  or  by  leaving  a  copy  thereof,  at 
the  usual  place  of  abode,  at  least  twenty  days  before 
the  time  of  holding  the  court;  and  where  the  heirs  or 
other  representatives  live  out  of  the  county,  by  pub- 
lishing a  copy  certified  by  the  clerk  of  the  Orphan's 
Court,  in  a  newspaper  printed  in  the  county,  if  any 
be  there  .printed,  and  if  not,  then  in  the  newspaper 
published  nearest  to  such  county. 

It  would  seem  that  the  legislature  intended  this 
latter  rule  to  issue,  after  the  return  of  the  former. 
For,  by  the  section  that  gives  the  rule,  it  is  provided, 
that  where  any  person  has  died  intestate,  seized  of 
real  estate,  subject  to  partition  or  valuation,  and  none 
of  the  children  or  other  legal  representatives  will 
take  it  at  the  valuation  then  such  rule  shall  be  grant- 
ed.     But   as   there    are  many   advantages  besides 
the  saving  of  time  in  uniting  the  rules,  and  as  they 
may   be   made  conformably  to   the  acts  regulating 
each;  the  practice  has  been  in  the  first  judicial  dis- 
trict to  serve  the  rules  together.    The  service  of 
the  united  rules  must  therefore  be  made  on  the  par- 
ties residing  in  the  county,  by  delivering  notice  per- 
sonally to  the  party,  if  of  age,  or  to  his  guardian,  if 
a  minor,  or  by  leaving  a  copy  thereof  at  his  usual 
place  of  abode,  at  least  twenty  days  before  the  return 
day;  and  where  the  party  resides  out  of  the  county, 
by  publishing  an  office-copy  in  the  newspaper  print- 
ed in  the  county,  if  any  be  there  printed,  and  if  not, 
in  the  newspaper  nearest  to  such  county,  at  least 
four  weeks  previously  to  the  return  day,  and  at  least 


CHAP,  n.]  OF  DISTRIBUTION.  369 

once  a  week  for  four  weeks  successively,  in  one  daily 
newspaper  of  the  city  of  Philadelphia. 

On  the  return  of  the  rule,  if  there  be  no  excep- 
tions filed,  nor  objections  made  in  open  court,  the  heirs 
or  representatives  first  in  the  male  line,  and  after  in 
the  female  line,  in  the  order  of  primogeniture,  ex- 
ercise the  right  of  election  to  take  or  refuse  the  es- 
tate at  the  valuation.  This  right  of  election  descends 
to  the  heirs  according  to  the  rules  of  the  common 
law,  and  the  eldest  son  of  the  eldest  son  f  an  in- 
testate is  entitled  to  an  estate,  which  cannot  be  divi- 
ded, at  the  valuation,  in  the  same  manner  as  his  fa- 
ther; and  this,  whether  the  son  died  before  or  after  the 
intestate.  For,  though  the  main  intent  of  the  intes- 
tate acts  be,  that  real  estates  should  be  divided  among 
the  children  or  representatives  of  an  intestate,  and 
not  descend  to  the  heir  at  common  law,  yet  a  secon- 
dary and  the  next  object  seems  to  have  been,  to  pre- 
vent the  division  of  estates  into  many  parts,  to  their 
manifest  prejudice.  This  reason,  which  directed  the 
estate  to  the  eldest  son  or  heir-at-law,  where  it  could 
not  be  divided,  is  much  stronger  in  the  case  of  a  grand- 
son, as  the  distributive  shares  in  such  case  will  pro- 
bably be  more  numerous.  And  the  grand-child  heir- 
at-law  may  exercise  this  right  in  exclusion  of  his  bix> 
thers  and  sisters,  as  well  as  his  uncles  and  aunts,  (a) 
But  it  seems  that  the  guardian  of  the  children  of  the 
heir-at-law  may  claim  the  right  of  election  for  his 
wards  jointly,  where  the  estate  is  divided  into  seve- 
ral parts  as  incident  to  the  interest  which  descended 
to  them.  (6)  In  this  case,  it  is  to  be  observed,  that 
the  heir-at-law,  made  no  claim  of  an  exclusive  right, 

Co)  Walton  v.  Wallis,  1  Dall.  351.    (6)  Hersha  r.  Brenneman,  6  S.  &  F.  2. 

3    A 


370  OF  DISTRIBUTION.  f  BOOK  v. 

which  on  the  authority  of  Walton  v.  Willis,  would 
have  been  decreed  to  him. 

This  right  of  election  of  the  heir-at-law,  and  of  the 
other  children,  is  transferable.  The  ownership  of 
the  interest  carries  with  it  every  incident  which 
would  have  attached  to  it,  in  the  hands  of  the  per- 
sons represented,  (a)  But  if  the  heir  or  representa- 
tive make  several  assignments  of  his  interest  to  se- 
veral persons,  who  do  not  unite  in  a  choice,  the 
right  is  lost  to  the  original  holder  and  his  as- 
signees, and  passes  to  the  heir  or  representative  next 
in  order,  (b)  As  where  A  died  intestate,  seized  in 
fee  of  three  tracts  of  land,  and  leaving  one  son  and 
five  daughters.  By  virtue  of  an  execution  against  the 
son,  his  undivided  sixth  part  of  one  of  the  tracts  was 
sold  to  B  by  the  sheriff.  The  son  afterwards  conveyed 
to  C  all  his  estate  in  trust  for  the  support  of  his  wife 
and  children,  and  finally  was  discharged  by  the  in- 
solvent law,  and  assigned  all  his  property  to  D  and  C 
for  fhe  benefit  of  his  creditors.  Proceedings  were 
then  had  in  the  Orphan's  Court,  by  which  the  estate 
of  A  was  divided  into  three  parts,  of  which  each  of 
the  three  tracts  made  one,  and  each  was  valued  for 
the  purpose  of  election  according  to  the  act  of  assem- 
bly. B  and  C  presented  separate  petitions,  each 
praying  to  be  allowed  to  elect  in  right  of  the  son,  but 
electing  different  tracts.  D  did  not  interfere.  The 
Orphan's  Court  rejected  both  petitions,  and  deter- 
mined that  the  right  of  election  had  passed  to  the  old- 
est daughter.  And  the  Supreme  Court  on  appeal 
confirmed  their  decision,  (c) 

(a)  Kline  v.  Grayson,  4  Binn.  225-     (6)  Kline  v.  Grayson,  4  Birm.  225. 
Hersha  v.  Brenneman,  6  S.  &  R.         (c)  Ibid. 


CHAP,  n.]  OF  DISTRIBUTION. 

No  child  or  children  of  an  intestate  can  by  their 
acts  defeat  the  operation  of  the  law  as  to  the  ap- 
praisement of  the  lands  of  the  ancestor,  when  they 
cannot  be  divided  without  prejudice  to,  or  spoiling 
th£  whole.  By  their  deeds  they  can  transfer  no  more 
than  their  qualified  interests  in  the  land,  and  their  as- 
signees held  them  precisely  in  the  same  manner  as 
they  themselves  held  them,  subject  to  an  eventual 
appraisement.  It  is  evident,  that  in  the  first  instance, 
the  lands  are  subjected  to  the  payment  of  the  parent's 
debts,  and  the  purparts  of  each  of  the  children  are 
bound  by  judgments  had  against  them  respectively. 
When  the  real  estate  is  transmuted  into  perconalty, 
under  the  operation  of  the  law,  by  approved  security 
being  given  in  the  Orphan's  Court,  for  the  amount  of 
the  appraisement,  the  former  incumbrances  on  the 
children's  undivided  shares  of  the  land  cease,  and  are 
transferred  into  liens  on  their  respective  purparts  of 
the  valuation.  The  creditors  by  mortgage  and  judg- 
ment still  retain  a  legal  preference  as  to  their  de- 
mands to  a  proportion  of  the  appraisement  corres- 
ponding with  the  children's  interest  in  the  land,  (a) 

Where  there  is  a  balance  due  to  the  administrator, 
or  judgments  unsatisfied  against  the  intestate,  the 
shares  of  the  several  children  in  the  appraisement 
must  necessarily  be  diminished  in  proportion  thereto. 
The  liens  of  the  respective  judgment  creditors  against 
the  different  children  must  also  be  deducted  from 
their  purparts.  Under  such  circumstances  the  chil- 
dren would  not  be  entitled  to  their  shares  of  the  va- 
luation unless  they  gave  refunding  bonds, 

(a)  Diamond  v.  Robinson,  2  Yeates,  326. 


372  OF  DISTRIBUTION.  [BOOK  v. 

The  heirs  or  representatives  may  accept  or  refuse 
the  several  parts  of  the  estate,  by  appearing  person- 
ally in  court,  and  declaring  their  intentions  viva  voce, 
or  they  may  make  their  declarations  in  writing.  The 
latter  is  the  better  mode,  as  it  provides  against  mis- 
takes and  omissions  of  clerks.     Or  their  refusal  may 
be  declared  by  an  attorney  duly  authorized.    The  re- 
fusal by  attorney  is  provided  for  by  section  2nd  of  the 
act  of  26th  March  1808,  (a)  which  declares, "  If  upon 
the  return  of  the  inquisition  all  the  children  or  legal 
representatives  of  the  intestate  shall  appear  in  court 
personally,  or  by  guardian,  or  attorney,  in  fact  duly 
constituted,  and  refuse  to  accept  the  estate,  or  any 
part  thereof,  if  divided,  at  the  valuation  thereof,  and 
shall  unanimously  desire  the  same  or  any  part  there- 
of to  be  sold  by  order  of  the  court,  the  said  court  may 
order  or  decree  the  sale  thereof  without  granting 
any  rule  to  shew  cause  why  the  said  estate  or  any 
part  thereof  should  not  be  sold,  any  practice  to  the 
contrary  notwithstanding;  and  to  remove  doubts,  all 
proceedings  heretofore  had,  and  decrees  made  in  the 
Orphans  Court  in  pursuance  of  the  act  entitled  "  A 
further  supplement  to  the  act  entitled  an  act  direct- 
ing the  descent  of  intestate's  real  estate,  and  distribu- 
tion of  their  personal  estates,  and  for  other  purposes 
therein  mentioned,"  passed  April  2nd  1304,  or  of  the 
act  which  is  hereby  amended,  where  notice  has  been 
given  in  the  newspapers  of  the  application  for  a  par- 
tition or  valuation,  or  where  by  the  consent  of  the  le- 
gal representatives,  a  rule  to  shew  cause  has  been 

(a)4£ra.  L.  519. 


OHAP.  11.3  OF  DISTRIBUTION.  373 

waved,  if  otherwise  legal,  are  hereby  declared  to  be 
valid.'' 

When  the  acceptance  or  refusal  of  the  estate  is  de- 
clared by  an  attorney  in  fact,  the  instrument  by 
which  he  is  appointed  should  be  as  formal  and  opera- 
tive as  that  empowering  him  to  make  conveyance  of 
an  estate;  and  the  consent  offemmes  coverts  should  be 
certified  in  the  same  way  as  is  used,  in  making  a  deed. 
Such  attorney  may  represent,  one  or  more  of  the 
heirs  or  representatives,  and  where  the  guardian  of 
minor  parties  cannot  attend  personally,  it  is  presumed 
that  he  also  may  constitute  an  attorney.  The  decla- 
ration of  the  attorney  in  fact  should  be  in  writing  sta- 
ting his  authority,  and  his  letter  of  attorney,  and  such 
declaration  should  be  filed  of  record  in  the  court. 

In  electing  to  take  a  part  of  the  estate,  the  heir 
having  the  right  is  uncontrolled  in  his  choice,  but  he 
cannot  have  more  than  one  choice,  and  cannot  have 
more  than  one  piece  of  property,  (a)  And  where  an 
intestate  has  left  real  estate  in  more  than  one  county, 
if  after  inquisition  held,  any  of  his  legal  representa- 
tives shall  accept  of  the  real  estate  in  one  county, 
such  person*  shall  not  have  the  right  to  elect  to  take 
the  real  estate,  or  any  part  thereof,  in  any  other 
county,  until  all  the  other  representatives  shall  have 
refused  to  take  the  same  at  the  valuation.  (6) 

It  is  scarce  necessary  to  state  that  where  the  estate 
is  divided  into  fewer  parts  than  there  are  heirs,  those 
who  take  such  parts  become  indebted  to  those  who 
have  none,  and  those  who  have  the  larger  shares  to 

(a)  Kline  v.  Grayson,  4  Binn.  225.       (6)  Act  7th  April  1807,  4  Sm.  L. 

400. 


374  OF  DISTRIBUTION.  [BOOK  v. 

those  who  have  the  smaller.  In  such  cases  payment 
should  be  made,  or  secured  to  be  made,  according  to 
the  act  of  assembly. 

The  following  case  will  illustrate  the  manner  in 
which  an  estate,  divided  into  fewer  parts  than  there 
are  heirs,  is  to  be  settled. 

A  died  intestate,  leaving  the  following  real  estate, 
and  issue  five  children,  B,  C,  D,  E,  F. 

A  house  valued  at  S  3000 

A  farm  valued  at  10  000 

A  lot  valued  at  2000 


15,000 

This  sum  divided  by  the  number  of  heirs  gives  to 
each  S3000  as  his  portion.  But  B  takes  the  house  va- 
lued at  83000,  C  takes  the  farm,  valued  at  810,000, 
and  D  the  lot  at  $2000.  B  has  therefore  received 
his  full  proportion  of  the  estate  of  his  father,  and  D 
two-thirds  of  his  portion.  But  C  has  much  more  than 
his  share,  and  must  pay  or  secure  to 

D  1000 

E  3000 

F  3000 


7000 

The  order  of  the  court  is,  that  the  estates  ac- 
cepted by  the  parties  respectively  be  adjudged  to 
them  at  the  valuation,  they  paying  or  securing  to  be 
paid  to  the  other  children  or  representatives  of  the 
intestate,  their  respective  parts  of  the  value  thereof, 
to  be  held  by  the  said  parties  their  heirs  and  assigns, 


OHAP.  ii.]  OF  DISTRIBUTION.  375 

forever  in  like  manner  as  the  same  was  holden  by  the 
intestate. 

III.  Where  the  return  of  the  commissioners  or  in- 
quest is,  that  the  estate  cannot  be  divided,  and  that 
it  is  valued  at  a  specific  sum,  it  is  either  accepted  or 
refused  by  the  male,  and  next  in  the  female  line  in 
the  order  of  primogeniture.  If  the  heirs  appear  in 
person  they  may  accept  or  refuse  as  in  the  case  where 
the  estate  is  divided  into  fewer  parts  than  there  are 
heirs.  If  the  eldest  heir,  having  the  right  to  elect, 
or  in  case  of  his  refusal,  the  other  heirs  on  whom  the 
right  devolves,  do  not  appear  on  the  return  of  the 
commissioner  or  inquest,  a  rule  is  to  be  taken  as  in 
the  foregoing  division,  and  as  provided"  by  section  8 
of  the  act  of  7th  April  1807,  and  section  2nd  of  act 
2d  of  March,  1808,  on  the  heirs  to  appear  on  a  day 
given,  and  to  elect  or  refuse  to  take  at  the  valuation. 
To  this  rule  is  generally  joined,  that  given  by  the 
act  of  2nd  April  1804,  section  1,  requiring  them  to 
shew  cause  why  the  estate  should  not  be  sold. 

In  case  of  the  acceptance  of  the  estate  by  the  el- 
dest, or  other  heir,  the  purparts  or  shares  of  the  rest 
are  to  be  paid,  or  secured  to  be  paid,  in  some  reason- 
able time,  not  exceeding  twelve  months,  as  the  Or- 
phan's Court  may  limit  and  appoint.  The  security  in 
many  of  the  counties,  is  by  recognizance  pursuant  to 
the  recommendation  of  the  Supreme  Court,  in  the 
case  of  Walton  v.  Willis,  (a)  in  the  course  of  the  ar- 
gument, of  which  the  C.  J.  said,  that  the  practice 
of  taking  bonds  for  the  security  of  the  purparts  was 
illegal  and  improper;  for  the  Orphan's  Court  ought, 

(a)  1  Dall,  365. 


376  OF  DISTRIBUTION.  [BOOKV. 

instead  of  bonds,  which  are  mere  personal  security, 
to  take  recognizances,  by  which  the  lands  themselves 
would  be  bound  for  the  payment  of  the  distributive 
shares.  And  such  recognizance  is  a  legal,  not  an 
equitable  lien,  upon  such  lands  from  its  date,  (a)  and 
is  in  the  nature  of  a  judgment,  and  cannot  be  reduced 
by  claims  arising  anterior  to  it.  (b)  It  may  be  taken 
in  the  name  of  the  President  of  the  Orphan's  Court, 
and  his  successor,  and  may  be  sued  in  the  name  of 
the  President  of  the  Orphan's  Court,  for  the  time 
being,  (c) 

Jf  in  the  recognizance,  principal  and  surety  jointly 
and  severally  acknowledge  themselves  firmly  bound, 
&c.  in  a  sum  certain;  which  sum  the  principal  willeth 
and  granteth  to  be  levied  on  the  said  tract  of  land, 
the  security  is  personally  bound,  and  an  action  of 
debt  may  be  maintained  against  him  upon  the  recog- 
nizance. The  practice  of  the  Orphan's  Court  of  the 
city  and  county  of  Philadelphia,  is  to  require  bonds 
secured  by  mortgages  upon  the  premises.  This  mode 
has  the  advantage  of  the  recognizance  in  binding  the 
lands,  and  if  the  mortgage  be  recorded,  it  gives  more 
certain  notice  of  the  incuinbrance  to  purchasers. 
And  the  mortgage  being  a  transferable  and  market- 
able security,  is  more  convenient  to  all  parties.  But 
the  legislature  in  framing  the  act  of  1794,  did  not 
adopt  the  suggestion  of  the  C.  J.  as  to  recognizances, 
though  it  must  have  been  known  to  them.  That  act 
requires  only  that  the  party  accepting  the  estate 
should  give  "  good  security"  fur  the  payment  of  the 

(a)  Kean  v.  Franklin,  5  S.  £R.  147.  (c)  Kean  v.  Franklin,  5  S.  &  R.  147. 
(6)  Beatty  £  al.  v.  Smith,  4  Yeates,  Taggart  v.  Cooper,  1  S.  £?  R.  497. 
102. 


CHAP,  ii.]  OF  DISTRIBUTION.  377 

shares  and  dividends."  The  court  are  thus  enabled 
to  adapt  the  security  to  the  circumstances  of  the  es- 
tate, and  the  wishes  of  the  parties. 

The  decree  of  the  court  should  set  forth  the  amount 
of  each  share,  or  pur  part  of  the  valuation  money  spe- 
cifically, and  the  time  fixed  for  their  payment,  (a) 

The  case  of  Walton  v.  Willis  has  settled  an  im- 
portant principle  as  it  regards  the  title  of  the  heir 
taking  the  estate  at  the  valuation.  Neither  his  elec- 
tion, nor  the  adjudication  of  the  court,  give  him  title. 
These  make  an  inchoate  right  to  be  perfected  by 
the  payment,  or  securing  the  payment  of  the  pur- 
chase money.  The  condition  on  which  the  adjudica- 
tion is  made  must  be  complied  with.  For  the  fee  in  the 
premises  cannot  be  vested  until  the  valuation  money 
be  paid  or  secured  to  be  paid.  (6) 

It  was  formerly  the  practice  of  many  counties  of 
the  state  to  charge  interest  on  the  purparts  unpaid, 
only  from  the  time  fixed  by  the  Orphan's  Court  for 
the  payment  of  such  purparts  to  the  heirs  or  repre- 
sentatives. But  this  practice  is  fundamentally  wrong, 
and  the  children  or  representatives  ought  to  receive 
interest  on  their  respective  shares  from  the  time  of 
the  acceptance  of  the  real  estate  by  any  of  the 
heirs,  (c) 

The  bonds  given  by  the  heir  or  representative 
accepting  the  estate,  for  the  purpart  of  the  other 
heirs,  are  not  in  the  nature  of  real  estate,  but  are 
personal  property.  In  the  case  of  Fo/te  v.  Barnet,  (d) 
the  jquestion  was,  whether  a  debt  due  from  the  hus- 

(n)  Walton  v.  Willis,  1  Dall.  354.  (c)  Hublejr  v.  Hamilton,  1  Yeates, 
(6)  Ibid.  ,  ,  392. 

(rf) 1  Binn.  358. 

3   B 


378  OF  DISTRIBUTION.  [BOOK  v. 

band  to  the  estate  of  the  wife's  father  might  be 
charged  against  the  wife's  distributive  share  of  the 
valuation  money.  The  question  arose  on  the  petition 
of  the  administrators  of  the  intestate,  to  each  of  whom 
a  part  of  the  real  estate  was  ordered  to  the  Orphan's 
Court,  that  the  money  which  by  virtue  of  the  inquest 
and  valuation  accrued  to  Yoke,  (the  husband)  in 
right  of  his  wife  might  be  made  payable  to  them  as 
administrators,  in  satisfaction  -of  Yokes  debt,  or  that 
it  might  be  secured  in  some  other  way  for  the  bene- 
fit of  Barnefs  estate.  The  Orphan's  Court  decreed 
against  the  petition,  and  the  Circuit  Court  upon  ap- 
peal, reversed  their  decree,  and  ordered  the  distri- 
butive share  of  Yoke,  in  right  of  his  wife,  to  be  de- 
ducted from  the  sum  due  on  the  judgment,  and  that 
giving  him  credit  therefor  should  be  deemed  a  full 
payment  to  him  in  right  of  the  wife. 

An  appeal  was  made  to  the  Supreme.  Court,  and 
the  appellants  made  two  points. 

1st.  That  the  Orphan's  Court  had  no  jurisdiction 
to  act  upon  the  matter  of  the  petition. 

2nd.  That  it  was  unjust  to  deduct  the  husband's 
debt  from  the  wife's  share  of  her  father's  real  estate. 

Tilghman  C.  J.  delivered  the  opinion  of  the  court. 
"  In  supporting  the  first  point  it  was  urged,  that  the 
Orphan's  Court  had  no  authority  but  what  they  de- 
rived from  the  act  of  assembly  directing  them  to  make 
partition  of  the  intestate's  estate,  and  that  in  case  of 
a  dispute  they  have  no  mode  of  ascertaining  the 
amount  of  a  debt.  But  there  are  cases  in  which  the 
Orphan's  Court  must  take  upon  themselves  to  decide 
fticts  incidental  to  the  partition  of  an  estate.  For  in- 


OHAP.  if.]  OP  DISTRIBUTION.  379 

stance,  if  a  dispute  should  arise  concerning  the  amount 
of  an  advancement  made  by  the  intestate  in  his  life- 
time to  one  of  his  children,  partition  cannot  be  com- 
pleted till  this  amount  be  ascertained.  If  necessary, 
facts  may  be  ascertained  by  a  jury,  so  that  there  seems 
to  be  no  difficulty  in  surmounting  this  part  of  the  ob- 
jection. If  instead  of  a  debt  due  from  Yohe  to  his 
father-in-law,  he  had  received  from  his  father-in  law 
an  advance  in  part  of  his  wife's  share  of  the  estate, 
there  is  no  doubt  but  the  Orphan's  Court  could,  and 
must  have  deducted  the  amount  of  the  advance.  The 
case  of  a  debt,  to  be  sure,  is  not  quite  the  same,  al- 
though in  fact,  this  debt  has  drawn  as  much  from  the 
estate  of  Henry  Barnet  into  the  hands  of  his  son-in- 
law,  as  if  it  had  been  an  actual  advance.  But  in- 
asmuch as  Yohe  cannot  come  at  his  wife's  share 
without  the  aid  of  the  Orphan's  Court,  I  see  no  rea- 
son why  that  court  may  not  deduct  what  appears  to 
be  due  from  him  to  the  other  heirs  in  a  case  like  the 
present,  where  if  he  once  gets  hold  of  the  money  on 
the  bond  there  is  reason  to  fear  that  paj'ment  of  his 
debt  will  never  be  obtained.  I  speak  now,  taking  it 
for  granted,  that  Yolie  is  entitled  to  receive  the 
amount  of  his  wife's  share,  which  is  the  second  point 
for  consideration 

"  The  Orphan's  Court  have  ordered  that  a  bond 
should  be  given  to  Yohe  in  right  of  his  wife,  for  the 
amount  of  her  share*.  It  is  said,  and  not  without 
plausibility,  that  this  bond  being  given  in  lieu  of  land, 
ought  to  be  considered  as  the  property  of  the  wife; 
that  if  the  bond  was  passed  immediately  to  her,  and 
ehe  should  survive  her  husband,  it  would  be  her  ab- 


380  OF  DISTRIBUTION.  [BOOK  v. 

solute  property,  and  that  it  is  hard  to  deprive  her  of 
this  chance.  There  certainly  may  be  hardships  in 
cases  of  the  kind,  which  probably  the  legislature  were 
not  aware  of,  when  they  directed  the  mode  of  parti- 
tion. But  we  must  take  the  law  as  we  find  it  written. 
There  is  no  ground  for  saying  that  the  share  thus  di- 
rected to  be  paid  in  money  remains  for  any  intent  or 
purpose  of  the  nature  of  real  estate.  It  is  converted 
completely  into  personal  property.  The  bond  would 
be  altogether  in  the  power  of  the  husband.  He  might 
release  it,  assign  it,  or  dispose  of  it  in  any  way  he 
thought  proper.  It  is  to  be  regretted  that  the  courts 
in  this  state  are  not  vested  with  the  power  exercised 
by  the  courts  of  Chancery  in  England,  of  insisting  on 
s»me  provision  for  the  wife  when  the  husband  applies 
to  them  for  the  purpose  of  getting  possession  of  her 
personal  property.  But  we  have  no  trace  of  any  such 
exercise  of  power  by  our  courts.  It  must  be  taken 
for  granted,  then,  that  they  possess  no  such  power. 
That  being  the  case,  Jacob  fofie  appears  to  be  sub- 
stantially the  owner  of  his  wife's  share.  If  it  was  paya- 
ble in  cash,  he  would  have  a  right  to  demand  it-,  and 
being  in  fact  no  more  than  money  to  be  secured  by 
bond  payable  in  a  time  to  be  fixed  by  the  Orphan's 
Court,  not  exceeding  twelve  months  from  the  par- 
tition, I  am  constrained  to  consider  it  as  his  property. 
I  am  therefore  of  the  opinion  that  the  equity  of  this 
case  demands  that  the  balance  due  on  the  judgment 
against  Jacob  Yoke  should  be  deducted  from  his  wife's 
share,  and  that  the  judgment  of  the  Circuit  Court 
be  confirmed." 

But  the  real  estate  is  not  converted  into  personal, 


CHAP,  ii.]  OF  DISTRIBUTION.  381 

until  it  has  been  actually  sold,  and  the  sale  has  been 
confirmed  by  the  Orphan's  Court.  This  was  decided 
in  the  case  ofFerree  v.  Commonwealth,  (a) 

The  opinion  of  the  court  was  delivered  by  Gib- 
son J. — Joseph  Ferree,  the  intestate,  left  a  widow,  a 
brother,  and  the  issue  of  two  sisters  By  an  inquisi- 
tion taken  on  the  real  estate,  for  the  purpose  of  ma- 
king partition,  it  was  found  that  the  property  could 
not  be  divided,  without  injury  to  the  whole,  and  it 
was  appraised  according  to  the  intestate  laws.  The 
heirs  severally  appeared,  and  refused  to  take  at  the 
valuation,  and  an  order  of  sale  was  obtained  and  re- 
newed from  time  to  time,  till  the  property,  after  the 
lapse  of  a  few  years,  was  sold.  In  the  meanwhile, 
David  Ferrer,  the  brother  of  the  intestate,  had  died; 
and  Hannah,  one  of  his  children,  had  intermarried 
with  the  plaintiff,  and  had  also  died  a  short  time  be- 
fore the  sale:  so  that  the  question  is,  whether  her  in- 
terest in  her  father's  portion  of  the  estate,  was  real 
or  personal  at  her  death?  If  personal,  the  plaintiff 
would  be  entitled  to  the  whole,  as  her  administrator: 
if  real,  he  would  be  tenant  by  the  curtesy  of  the  mo- 
ney, and  entitled  only  to  the  interest;  the  principal 
having  descended  to  the  heirs  before  it  was  turned 
into  money. 

"  This  is  a  plain  case,  and  one  about  which  little 
need  be  said.  The  counsel  for  the  plaintiff,  rest  the 
argument  on  a  supposed  analogy  between  it,  and  the 
case  of  land  stipulated  to  be  turned  into  money, 
which,  in  equity,  is  always  to  be  taken  as  money. 
But  there  is  no  point  in  which  the  analogy  holds.  In 
the  first  place,  there  is  no  stipulation  in  the  case, 

(a)8S.&R.  312. 


382  OF  DISTRIBUTION.  [BOOK  v, 

there  being  no  contract  with  a  purchaser:  and  in  the 
second,  the  matter  is  not  to  be  considered  as  in  equity 
at  all:  and  if  it  were,  it  would  be  so  much  the  worse 
for  the  plaintiff's  pretensions.  If  he  were  claiming 
the  aid  of  a  chancellor  exercising  his  powers  in  the 
ordinary  mode,  he  would  not  be  suffered  to  touch  even 
the  personal  estate  of  the  wife,  without  an  adequate 
settlement-,  but  he  would  not  be  assisted  on  any  terms, 
in  turning  her  land  into  money.  No  one  more  highly 
appreciates  the  policy  and  general  effect  of  our  intes- 
tate laws  than  I  do;  yet  the  frequent  transmutation  of 
the  real  estate  of  married  women  into  personalty,  is 
one  of  the  oppressive  consequences  of  their  operation, 
and  of  our  want  of  the  specific  powers  of  a  Court  of 
Chancery,  which  every  jurist  mustregret  Itnever  was 
an  object  with  the  legislature,  to  transfer  the  real  estate 
of  the  wife  to  the  husband,  as  if  it  were  personal,  for  in 
breaking  on  the  common  law  rules  of  descent,  care  is 
taken  in  other  parts  of  those  laws,  to  prevent  the  estate 
from  passing  to  those  who  are  not  of  the  blood  of  the 
first  purchaser  j  and  those  of  the  half  blood  are  suffered 
to  inherit  in  preference  to  the  more  remote  kindred, 
only  where  the  estate  has  been  acquired  by  the  in- 
testate himself.  Had  it  been  foreseen  that  a  contra- 
ry result  would  be  produced  by  turning  a  wife's  land 
into  money,  it  would  doubtless  have  been  prevented. 
For  myself,  I  shall  never  consent  to  give  effect  to  a 
claim  by  the  husband,  or  those  in  his  stead,  to  what 
was  at  any  time  the  wife's  real  estate,  where  it  is 
possible  to  defeat  it  by  any  construction,  however 
forced.  Here,  however,  the  husband  is  pursuing  a 
supposed  legal  right,  without  a  particle  of  equity;  to 


CHAP,  ii.]  OF  DISTRIBUTION.  383 

support  which,  would  require  a  violent  and  unnatural 
construction  the  other  way.  The  order  of  sale  could 
not  have  the  effect  of  changing  the  nature  of  the  estate 
of  those  entitled,  unless  it  had,  at  the  same  time,  the 
effect  of  divesting  their  interest  in  the  land-,  and  that 
can  not  be  pretended  j  for  it  would  be  monstrous  to  say, 
they  should  not  maintain  an  action  for  an  injury  to 
the  freehold,  committed  after  the  order  was  made, 
for  no  one  else  could.  It  is  clear  their  interest  would 
be  bound  by  a  judgment-,  and  that  they  would  be  sub- 
ject to  a  payment  of  taxes,  and  every  other  incident 
of  ownership.  Why,  therefore,  should  not  the  land  be 
subject  to  the  rules  of  descent?  I  take  it,  then,  that 
persons  entitled  under  the  intestate  acts,  are,  in  every 
respect,  and  for  every  purpose,  complete  owners  of 
the  land,  till  their  interest  is  divested  by  a  sale  and 
confirmation:  for  till  that  takes  place,  the  proceedings 
are  but  m  fieri" 

If  in  the  partition  of  the  lands  of  the  intestate  a 
part  is  allotted  to  a  married  woman,  and  her  husband 
pay  no  money  to  equalize  the  partition,  the  land  be- 
longs to  the  wife^  the  husband  has  only  a  life  estate 
therein,  and  after  his  death  it  cannot  be  sold  for  his 
debts. 

These  points  were  established  by  the  case  of  Blo- 
cher  .  Carmony,  administrator  of  //ess,  (a)  in  which 
Tilghman  C.  J.  delivered  the  following  opinion  of 
the  court. 


'This  is  an  appeal  from  a  decrefe  of  the  Orphan's 
Court  of  Dauphin  county,  confirming  the  sale  of  a 
tract  of  land  supposed  to  be  the  property  of  George 

(a)  1  S.  &  R.  460. 


384  OF  DISTRIBUTION.  [BOOKV. 

Hess  deceased,  made  by  his  administrator  by  order 
of  the  said  court.  Matthias  Blacker,  the  appellant, 
who  married  the  widow  of  George  Hees,  contends 
that  the  sale  ought  not  to  have  been  made,  because 
the  land  was  the  property  of  Hess's  widow.  It  ap- 
pears from  the  facts  stated  on  the  record  that  the  land 
in  question,  was  part  of  the  real  estate  of  William 
Palm  deceased,  who  died  intestate,  leaving  a  widow 
and  three  children,  Catharine,  the  wife  of  Joseph 
Carmony,  Mary,  formerly  the  wife  of  the  said  George 
Hess,  now  of  Matthias  Blocher,  and  Elizabeth,  the 
wife  of  George  Moore.  On  a  petition  to  the  said 
Orphan's  Court  for  the  partition  of  the  said  Palm's 
estate,  it  was  divided  into  three  parts,  one  of  which 
was  assigned  to  each  of  the  husbands  in  right  of  their 
respective  wives,  the  daughters  of  Palm.  The  parts 
assigned  to  each  were  not  exactly  equal,  and  Hess's 
being  the  least  valuable,  he  was  entitled  to  receive  a 
sum  of  money  to  make  his  wife's  share  equal.  It  is 
now  contended  by  the  appellant,  that  George  Hess 
had  an  absolute  estate  in  fee  simple  in  his  wife's  land. 
Upon  consideration  of  the  act  of  assembly  of  the  19th 
April,  1794,  under  which  the  petition  was  made,  I 
can  perceive  nothing  which  countenances  such  a  pre- 
tension. The  Orphan's  Court  is  authorized  to  have 
a  partition  made  in  the  manner  directed  by  the  act 
between  .the  widows  and  children.  But  in  case  the 
land  will  not  admit  division  into  as  many  parts  as  will 
be  sufficient  to  assign  one  portion  to  each,  the  court 
may  either  assign  the  whole  to  one  child,  or  to  several 
of  the  children,  as  circumstances  require;  and  in  such 
case  the  whole  estate  is  to  be  appraised;  those  chiHjl 


CHAP.U.J  OF  DISTRIBUTION.  385 

dren  who  get  no  land  are  to  receive  their  shares  in 
money;  and  the  widow  is  to  receive  during  her  life 
the  annual  interest  of  one-third  of  the  value  of  the 
whole  land  in  lieu  of  dower.  There  may  be  cases 
of  hardship  or  difficulty  under  the  complicated  system 
of  our  intestate  laws,  where  large  sums  of  money 
are  paid  by  husbands  on  account  of  their  wives,  who 
receive  their  portion  in  land,  to  their  brothers  and 
sisters,  who  take  their  part  in  money.  It  will  be  re- 
membered that  the  opinion  now  given,  is  confined  to 
the  case  now  before  the  court,  where  each  child  had 
part  of  the  land,  and  the  wife  of  Hess,  intead  of  pay- 
ing was  entitled  to  receive  money  in  order  to  equalize 
the  partition.  In  such  case  there  is  no  more  reason 
for  the  husband's  taking  the  fee  simple,  than  if  he  had 
obtained  judgment  in  a  writ  of  partition  in  a  court  of 
common  law.  No  such  right  is  given  by  the  act  of 
assembly,  nor  is  there  any  equitable  circumstance 
on  which  he  can  found  it.  I  am  therefore  of  opinion, 
that  the  Orphan's  Court  had  no  right  to  order  a  sale 
of  this  land,  as  the  property  of  George  Hess.  He  had 
an  interest  as  long  as  he  lived,  in  right  of  his  wife, 
and  if  he  had  survived  her,  he  would  have  been  te- 
nant by  the  curtesy.  But  on  his  death  all  his  right 
was  extinguished.  The  decree  must  therefore  be  re- 
versed/' 

The  doctrine  of  this  case  was  confirmed  by  the  case 
of  Fogelsonger  v.  Somermlle  &  al.  (a)  in  which  it  was 
determined,  that  when  the  estate  of  an  intestate  has 
been  valued  in  the  manner  prescribed  by  the  intes- 
tate laws,  and  the  husband  of  a  female  heir  agrees 

(a)  6  S.  &  R.  2C7. 

3  c 


386  OF  DISTRIBUTION.  [BOOK  v. 

to  take  it  at  the  valuation,  the  Orphan's  Court  have 
no  power  to  vest  in  him  for  his  own  use,  his  wife's" 
share  of  the  estate;  and  if  the  court  decree  the  es- 
tate to  him  in  fee,  on  giving  recognizance  for  the 
payment  of  the  shares  of  the  other  heirs,  the  de- 
cree as  it  respects  his  wife's  proportion,  is  void-,  and 
on  her  death,  without  having  had  issue,  and  without 
having  done  any  thing  to  divest  her  title,  her  share 
descends  to  her  heirs-,  and  that  a  bona  fide  purchaser 
for  a  valuable  consideration  from  the  husband,  is  in  no 
better  situation  than  the  husband  himself. 

This  case  also  determined  a  point  of  much  impor- 
tance under  the  intestate  laws,  which  had  not  before 
been  decided.  Where  the  husband  takes  the  real  es- 
tate of  which  his  wife  is  an  heir  and  has  paid  or  se- 
cured to  be  paid  to  the  other  parties  in  interest  their 
proportions  of  the  appraised  value,  he  may  hold  in  his 
own  right  as  much  as  he  has  paid  for.  But  with  re- 
spect to  his  wife's  share  he  has  no  greater  interest 
than  in  any  other  part  of  her  real  estate.  The  same 
point  was  decided  in  the  case  of  btoolfoos  and  al.  v. 
Jenkins  and  wife,  (a)  In  the  latter  case,  John  tlub- 
ley,  Esq.  who  had  been  four  years  in  the  office  of  Ed- 
ward Shippen,  Esq.  the  clerk  of  the  Orphan's  Court 
of  Lancaster  county  prior  to  the  revolution,  when 
JWr.  Hubley  was  himself  appointed  to  that  office,  and 
filled  it  until  the  year  1800,  and  who  practiced  in  the 
Orphan's  Court  both  before  and  after  his  appoint- 
ment, and  was  familiarly  acquainted  with  the  proceed- 
ings of  that  court  during  the  whole  of  those  periods, 
certified  "  that  it  was  the  common  usage  for  husbands 
to  petition  the  Orphan's  Court  in  the  right  of  their 

(a)8S.  &JR.  174. 


UHAP.  ii.]  OF  DISTRIBUTION.  387 

wives,  for  the  partition  or  appraisement  of  their 
wives'  estate,  and  to  ask  for,  and  obtain  confirmation 
of  them  in  fee  to  the  husband,  upon  giving  security 
for  paying  to  the  other  children,  their  shares  of  the 
valuation  money."  But  to  the  argument  drawn  from 
this  usage  Duncan  J.  delivering  the  opinion  of  the 
court,  replied,  "  That  usage  can  never  be  a  good  one 
which  takes  away  the  land  of  one,  and  gives  it  to  ano- 
ther without  warrant  of  law.  Usage  against  a  statute 
is  an  oppression  of  those  concerned,  and  not  an  expo- 
sition of  the  law.  Vaughan,  169,  383,  1  Doll  178. 
This  is  not  a  mere  matter  of  practice,  but  a  question 
of  right,  and  such  usage  cannot  supersede  positive 
law .  A  misconception  of  the  Orphan's  Court  of  their 
powers  cann6t  be  set  up  against  the  law  itself;  and 
this  Court  cannot  be  referred  to  the  practice  of  that 
very  court,  to  learn  what  the  law  is  by  which  they  are 
to  proceed.  An  unbroken  general  usage  where  a  con- 
struction is  doubtful,  and  much  property  depends  upon 
it,  I  would  not  disturb-,  but  where  the  law  is  quite  clear, 
and  will  not  admit  of  doubt,  precedents,  which  have 
passed  sub  silentio,  ought  not  to  prevail.  In  Sommer- 
vttle's  case,  decided  by  this  court,  the  first  case  ever 
brought  into  judgment,  the  court  refused  to  sustain 
this  practice." 

The  last  case  reported  on  this  subject,  is  that  of 
M'Cullough  v.  Elders'  executws,  (a)  in  which  the  prin- 
ciples of  the  preceding  cases  are  confirmed.  But  the 
title  which  the  husband  obtains  under  the  Orphan's 
Court,  accompanied  with  possession  of  the  whole  of 
the  land,  will  enable  him,  after  the  death  of  the  wife, 

(a)8S.  &R.  181. 


388  OF  DISTRIBUTION.  [BOOK  v. 

to  recover  the  whole  against  one  who  has  entered 
without  better  title.  (6) 

If  any  one  of  the  heirs  taking  land  at  the  valua- 
tion, have  claims  on  the  others  for  advances  made  for 
the  benefit  of  the  whole,  he  must  have  such  claims 
adjusted  and  allowed  in  the  settlement  of  the  several 
shares  and  purparts.  It  is  too  late  after  bond  given 
for  such  shares  and  purparts.  This  was  determined  in 
the  case  of  Beatty  and  Wife  v.  Smith,  (a)  which  was 
debt  on  recognizance,  in  the  Orphan's  Court,  plea,  pay- 
ment, with  leave  to  give  the  special  matters  in  evi- 
dence. The  facts  were  these.  "  Samuel  Smith,  the 
father  of  plaintiff's  wife,  and  of  the  defendant,  died 
in  1 763,  intestate,  seized  of  a  tract  of  408  acres  of 
land,  leaving  a  widow,  four  daughters* and  one  son, 
his  youngest  child,  then  aged  six  years.  The  family 
were  brought  up  together,  and  lived  on  the  land  un- 
til the  daughters  were  severally  married  in  1778. 
The  defendant  occupied  the  lands  afterwards  for  his 
own  use.  On  the  fourth  September,  1797,  the  plaintiff 
applied  for  a  partition  or  valuation.  The  jury  did 
not  divide  but  valued  the  land,  which  was  accepted 
by  the  defendant,  who  entered  into  recognizances 
for  the  payment  of  the  distributive  shares  of  his  sis- 
ters on  the  27th  November." 

"  The  defendant  gave  notice  of  several  matters  for 
which  he  claimed  sett-offs. —  1st.  That  the  improve- 
ments on  the  land  made  since  the  death  of  the  intes- 
tate until  the  time  of  the  valuation  being  appraised 
with  the  land,  he  claimed  to  be  allowed  an  equivalent 
therefor  proportioned  to  each  child  s  share.  2nd.  He 
also  claimed  an  allowance  for  taxes  paid  on  the  real 

(a)  4  Jfeates,  102.  (6)  S.  &  R.  181. 


OHAP.  n.J  OF  DISTRIBUTION. 

estate  from  1780  to  1797.  3d.  Likewise,  for  his 
trouble,  costs,  and  expenses,  in  defending  an  eject- 
ment brought  against  him  by  a  family  agreement,  on 
which  there  was  a  subsequent  eviction  in  1789,  of  for- 
ty-seven acres,  part  of  the  lands  appraised;  and  4th. 
for  the  taxes  paid  by  him  on  these  forty-seven  acres." 

"  On  the  defendants'  offering  to  give  evidence  of 
these  sett-offs,  the  plaintiff's  counsel  excepted  there- 
to. And  after  argument  the  court  said, 

"  Unquestionably  the  recognizance  in  the  Orphan's 
Court  is  in  the  nature  of  a  judgment.  The  interests 
of  minors,  as  well  as  persons  of  full  age,  would  be 
strangely  affected,  if  a  doctrine  should  prevail,  that 
while  they  were  divested  of  the  interests  in  the  land, 
their  distributive  shares  of  the  valuation  should  not 
be  placed  on  a  secure  and  permanent  footing.  If  they 
are  liable  to  have  their  dividends  reduced  by  cir- 
cumstances or  considerations  which  have  occurred 
anterior  to  the  recognizance  solemnly  given,  they  will 
be  but  badly  protected  by  the  law.  Why  was  not 
this  defence  set  up  by  the  son  in  the  Orphan's  Court 
previous  to  their  decree,  and  his  subsequent  recog- 
nizance? Can  any  good  reason  be  assigned  for  it. 
We  cannot  presume  that  the  inquest  have  appraised 
valuable  permanent  improvements  made  at  the  son's 
expense,  as  the  property  whereof,  the  father  died 
seized." 

"  The  testimony  as  to  the  two  first  items  must  be 
over-ruled;  as  to  the  two  last  items  which  have  hap- 
pened since  the  valuation,  as  it  is  said,  under  the 
agreement  of  the  family,  evidence  applicable  to  them 
may  be  given." 


390  OF  DISTRIBUTION.  (TBOOK  v. 

If  the  decree  in  partition  in  the  Orphan's  Court,  in 
which  a  minor  is  interested  be  erroneous,  he  is  not 
concluded  by  his  own,  or  his  guardian's  acceptance  of 
the  sum  at  which  his  interest  in  the  estate  is  valued, 
provided,  as  soon  as  practicable  after  his  arrival  at 
lawful  age  he  take  the  necessary  step  to  question  the 
proceedings.  Nor  is  he  concluded,  though  he  ac- 
cepted the  purpart  after  his  coming  of  age,  if  he  were 
then  ignorant  of  the  wrong  done  him.  (a) 

SECTION  v. 

Of  the  sale  of  the  real  estate  where  the  parties  refuse  to 
take  at  the  valuation. 

By  the  act  of  1794,  the  heirs  or  representatives  of 
the  real  estate  weje  compelled  to  accede  to  the  par- 
tition, or  take  at  the  valuation  settled  by  the  Or- 
phan's Court.  In  case  the  estate  was  not  divided, 
some  one  must  have  taken  it  at  the  valuation,  though 
the  weight  of  the  purchase  should  render  him  unable 
to  hold  it.  So  if  the  estate  were  divided  into  fewer 
parts  than  there  were  heirs,  the  parts  must  have 
been  taken  by  some  one  of  the  heirs,  with  the  burden 
of  paying  to  others  their  purparts:  Or,  in  case  of  the 
refusal  of  all  the  heirs  to  take,  the  whole  proceeding 
in  the  Orphan's  Court  must  have  been  abortive.  These 
inconveniences  were  remedied,  by  the  acts  12th 
April,  1804,  (b)  and  26th  March,  1808.  (c) 

We  have  already  spoken  of  the  rules  upon  the  heirs 
to  come  in,  and  take  at  the  valuation,  and  to  shew 
cause  why  the  estate  should  not  be  sold,  and  of  the 
refusal  of  the  heirs  and  petition  for  sale. 

(a)  Elliot  v.  Elliot,  5  Binn.  1.  (cj4  Sm.  L.  519. 

(6)  4  Sm.  L.  185. 


CHAP,  ii.]  OF  DISTRIBUTION.  391 

Upon  the  petition  of  one,  and  the  refusal  of  all  the 
heirs  to  take  at  the  valuation,  an  order  of  sale  is  of 
course.  In  the  execution  of  which  the  following 
points  are  to  be  attended  to. 

1.  The  sale  must  be  on  the  premises. 

2.  It  must  be  on  a  day  certain,  to  be  ascertained 
by  the  court. 

3.  Ten  days  notice  must  be  given  by  the  adminis- 
trator, by  advertisement,  in  the  newspaper  printed 
in  the  county,  if  any  there  be,  and  if  there  be  none, 
then  in  that  nearest  to  the  county  wherein  the  land 
lies. 

4.  The  terms  on  which  the  estate  is  to  be  sold 
must  be  fixed  by  the  court:  or  as  the  practice  more 
frequently  but  not  more  wisely,  is,  must  be  approved 
by  them  after  sale  made. 

In  the  city  and  county  of  Philadelphia,  it  is  the 
practice  to  hold  the  sale  at  the  Merchant's  Coffee 
House,  notwithstanding,  the  act  of  assembly  express- 
ly requires  it  to  be  held  on  the  premises.  The  de- 
viation from  the  words  of  the  law  is  certainly  attend- 
ed with  many  advantages  to  the  vendors  of  the  estate. 
The  sale  being  held  at  a  more  convenient  hour,  among 
men  of  business,  in  a  central  situation,  in  the  midst  of 
the  money  market. 

Upon  the  sale  being  made  and  return  thereof  to 
the.  court,  they  are  required  on  motion  of  the  pur- 
chaser to  confirm  it,  and  to  decree  the  estate  in  the 
premises  so  sold,  to  be  transferred  and  vested  in  the 
purchaser,  as  fully  as  the  intestate  held  the  same  at 
his  decease:  subject  and  liable  to  the  payment  of  the 
purchase  money  according  to  the  terms  prescribed 


392  O*'  DISTRIBUTION.  [BOOKV. 

by  the  court,  in  the  order  of  sale:  And  they  may 
order  the  proceeds  of  such  sales  to  be  distributed  in 
such  manner  as  according  to  law  and  justice  may  be 
proper.  The  power  thus  to  distribute  the  proceeds, 
draws  with  it,  that  of  deciding  upon  the  interests  of 
the  several  parties;  such  as,  title,  quantum  of  interest, 
advancement,  unsettled  accounts,  and  in  a  word  upon 
every  thing  necessary  to  make  a  just  and  equitable 
settlement  of  the  estate. 

Upon  the  return  of  the  order  of  sale  the  confirma- 
tion is  made  nisi;  and  an  opportunity  is  thus  given  to 
the  parties  interested  to  take  exceptions  to  the  sale. 
If  exceptions  be  taken,  they  are  heard  and  disposed 
of,  as  in  other  cases  of  sale,  by  order  of  the  Orphan's 
Court — and  an  appeal  lies  from  a  final  decree  to  the 
Supreme  Court. 

CHAPTER  III. 

SECTION  I. 

Of  the  Widow's  Dower. 

The  widow's  right  of  dower  at  common  law  has 
always  existed  in  Pennsylvania.  This  right  extends 
to  one-third  part  of  all  the  lands  and  tenements 
whereof  the  husband  was  seized  at  any  time  during 
the  coverture,  to  hold  to  herself  during  her  natural 
life,  (a)  This  part  is  to  be  assigned  to  her  by  the  heir, 
or  any  person  in  possession  of  the  land,  who  has  not 
such  possession  by  her  fraud  or  covin.  (b)  In  default 
of  assignment  she  has  an  action  of  dower  either  by 
writ  of  dower  unde  nihil  habet;  or  if  a  partial  assign - 

fa)  2  B1.  Com.  129.  (6)  Bac.  Ab.  title  dower  D. 


OHAP.  in.]  OF  DOWER.  393 

ment  have  been  made  to  her,  by  a  writ  of  right  of 
dower,  which  is  a  more  gejie,ral  remedy  extending 
to  a  part  or  the  whole,  (a)  On  the  determination 
of  the  right  of  the  widow,  the  jury  which  tries 
it,  apportions  the  dower,  and  she  is  put  into  pos- 
session by  the  sheriff.  The  same  jury  also  gives 
damages  for  the  mesne  profits,  from  the  death  of  the 
husband,  for  which  execution  issues.  (6) 

Besides  the  right  of  dower  properly  so  called,  the 
widow  has  her  quarantine;  which  is  the  privilege  of 
continuing  in  the  capital  messuage,  or  mansion-house, 
or  some  other  house  whereof  she  is  dowable,  forty 
days  after  her  husband's  death;  (whereof  the  day  of 
his  death  is  accounted  one,)  and  during  that  time  to 
be  provided  with  all  necessaries  at  the  expense  of 
the  heir,  and'  before  the  end  thereof,  to  have  her 
dower  assigned  to  her.  This  privilege  is  given  by 
the  statute  of  9th  Henry  III.  c.  7,  which  is  so  far  in 
force  in  Pennsylvania,  (c) 

The  right  of  dower  attaches  on  the  death  of  the 
husband,  and  the  widow  may  be  endowed  temporari- 
ly, though  there  be  a  deficiency  of  personal  assets  to 
pay  debts,  and  though  upon  a  sale  of  part  .of  the 
lands  her  dower  will  decrease  in  proportion,  (d) 

A  died  intestate,  leaving  a  widow  and  a  sister,  his 
heir-at-law.  By  an  amicable  action  the  yearly  value 
of  the  widow's  dower,  or  rather  her  share  under  the 
intestate  laws  was  settled  at  1 50/.  which  was  agreed 
to  be  paid  her  annually.  The  first  annual  payment 
was  duly  made,  but  was  afterwards  stopped  on  notice 

(a)  3  Com.  183.  (c)  Report  of  Judges,  Robert's  Dig. 

(6)  Ibid.  (d)  Price  &ex.  v.  Johnston,  5  Teates,  516. 

3   D 

i 


394  OF  DOWER.  [BOOKV. 

given  of  debts  due  from  the  intestate.  An  action  was 
brought  to  recover  the.  sjims  subsequently  due,  and 
the  reference  to  whom  it  was  submitted,  reported 
that  there  was  no  money  due  to  the  plaintiffs,  as  the 
whole  estate  was  consumed  by  the  payment  of  debts 
by  the  defendant,  which  were  due  from  the  deceased 
at  his  death.  Exceptions  were  taken  to  this  report, 
on  the  ground  that  the  referees  had  erred  in  point  of 
law,  by  making  the  widow,  who  had  but  a  life-estate 
in  the  moiety  of  the  intestate's  lands,  contribute  to 
the  heir  one-half  of  the  decedent's  debts  remaining  un- 
paid after  the  exhaustion  of  the  personal  assets,  out  of 
the  annuity  awarded  to  her  in  lieu  of  dower.  The  re- 
port was  set  aside  by  C.  J.  Tilghman,  sitting  at  a  Cir- 
cuit Court,  from  whose  judgment  an  appeal  was  made, 
for  the  following  reasons: 

1st.  A  widow  is  not  entitled  by  the  laws  of  Penn- 
sylvania, to  dower,  until  the  debts  are  paid. 

2nd.  The  estate,  which  is  the  foundation  of  the  wi- 
dow's claim  is  subject  to  execution,  and  may  by  law 
be  delivered  to  creditors  for  the  payment  of  their 
debts. 

Yeafes  J.  in  delivering  the  opinion  of  the  court  said, 
"  The  debts  due  from  the  intestate  are  chargeable  on 
his  lands,  on  a  deficiency  of  personal  assets,  but  until 
the  creditors  have  proceeded  to  a  sale,  the  right  of 
the  widow  to  the  profits  of  her  share  stands  on  the 
same  footing  as  the  right  of  the  heir  to  his  share.  If 
the  heir  pay  debts,  he  can  come  in  as  a  creditor  pro 
tanto. 

"  It  is  true,  the  widow's  ultimate  right  of  dower 


CHAP.  HI.]  OF  DOWER.  395 

must  depend  on  the  state  of  her  husband's  lands  after 
payment  of  his  debts-,  but  it  is  not  true,  that  she  cannot 
receive  a  temporary  share  until  that  object  is  accom- 
plished. She,  cannot  compel  the  creditors  to  com- 
mence suit,  and  without  funds  she  cannot  discharge 
the  debts.  When  any  part  of  the  lands  is  sold  by  le- 
gal process,  the  share  of  the  widow  must  proportional- 
ly decrease:  but  as  between  her  and  the  heir,  she  was 

•/ 

entitled  to  one  moiety  of  all  the  lands  until  such  sale. 
It  may  be  another  question,  which,  however,  cannot 
take  place  here,  whether  if  upon  a  sale  of  all  the 
lands,  there  should  be  a  deficiency  of  assets,  both  the 
heir  and  widow  might  not  be  eventually  responsible 
to  creditors.  So  far  from  the  widow's  claim  of  dower 
beinoj  discouraged  bv  our  laws,  she  derives  an  interest 

\j 

from  the  valuation  of  mere  woodland  in  a  state  of  na- 
ture, where  the  same  cannot  be  divided  with  pro- 
priety. 

' '  The  erroneous  principle  on  which  the  referees 
have  proceeded  will  be  readily  perceived,  by  con- 
sidering the  plaintiff's  demand  to  the  annuity  of  150Z. 
That  sum  was  fixed  on  by  the  first  award,  in  lieu  of 
the  widow's  right  of  dower,  and  is  the  interest  arising 
out  of  a  principal  of  25001.  for  one  year.  It  follows 
of  course,  that  the  first  set  of  referees  must  have  va- 
lued all  the  lands  of  the  intestate  at  50UO/.  or  as  pro- 
ductive of  300/.  annually  in  net  profits.  Now,  if  those 
lands  are  resorted  to  by  a  creditor  for  the  payment 
of  a  debt  of  20001.  due  from  the  intestate,  or  if  any 
one  on  behalf  of  the  heir-at-law  should  pay  that  sum, 
and  look  to  the  lands  for  remuneration,  the  conse- 
quence as  to  the  widow  must  be,  that  the  principal, 


396  OF  DOWER.  [BOOK  v. 

out  of  which  her  annuity  would  thenceforth  accrue, 
would  be  decreased  from  2500  to  1 500J.  and  her  an- 
nuity in  future  would  be  90J.  and  not  150/.  This  re- 
duces the  matter  to  a  mathematical  certainty,  but  by 
the  account  of  the  referees  which  accompanied  the 
report,  they  assume  the  principle,  that  in  the  case 
already  put,  the  widow  would  be  chargeable  with 
the  payment  of  WOOL  the  one  full  half  of  the  whole 
debt,  which  is  palpably  unjust.  I  have,  therefore,  no 
hesitation  in  saying,  that  the  report  was  set  aside  on 
the  most  just  grounds." 

But  the  widow  cannot  enter  upon  the  lands  until 
her  portion  be  assigned  and  set  out  to  her  either  by 
the  heir,  terre-tenant,  or  sheriff,  in  certainty,  and  even 
if  she  recover  dower  of  the  land,  she  cannot  enter 
before  execution  issued  (a)  And  though  she  may 
have  entered  into  possession,  the  heir  or  devisee  may 
recover  against  her  without  assigning  her  dower,  (b) 

If  the  husband  sell  the  estate,  and  it  be  improved 
by  the  purchaser,  the  widow  shall  take  no  advantage 
of  the  improvements,  but  throwing  them  out  of  the 
estimate,  she  shall  be  endowed  according  to  the  value 
at  the  time  of  assigning  the  dower,  (c)  But  if  the 
improvements  be  made  by  the  heir,  the  widow  shall 
be  endowed  of  one-third  part  of  the  estate,  according 
to  its  value  at  the  time  dower  is  assigned  to  her;  be- 
cause it  was  the  folly  of  the  heir  to  make  improve- 
ments on  land  which  he  knew  to  be  subject  to 
dower,  (d) 

(a)  Less,   of  Eyfos  r.   Webb,    1      c)  Thompson  ?.  Morrow,  5  S.  &  R. 

Yeates,  424.  290. 

(&)  Ibid.  (d)  Ibid. 


OBAP.  HI.]  OF  DOWER.  397 

A  woman  is  entitled  to  dower  in  all  the  lands  of 
the  husband:  but  he  must  have  been  seized  in  fact,  or 
in  law  of  the  freehold,  as  well  as  of  the  estate  of  in- 
heritance during  the  coverture.  Therefore  dower 
cannot  be  demanded  of  an  estate,  the  remainder  in 
fee  of  which  was  vested  in  the  husband  subject  to 
a  life-estate  in  a  third  person,  which  remainder  the 
husband  had  aliened  during  coverture,  (a) 

She  is  also  endqwable  of  a  trust  estate,  (6)  but  not 
of  the  estate  held  by  the  trustee,  (c)  And  it  has  been 
held,  that  the  widow  was  not  dowable  of  lands  held 
by  warrant,  because,  under  the  customs,  and  estab- 
lished practice  of  the  country,  lands  warranted,  and 
even  surveyed,  were  considered  in  early  times  as 
chattel  interests,  and  sold  as  such  in  the  course  of  ad- 
ministration, (d)  But  this  has  been  overruled,  and 
she  is  now  dowable  of  lands  held  by  improvement 
rights  alone.  This  was  determined  in  the  case  of 
Kelly  and  wife  v.  Mohan,  (e)  in  which  the  court  said, 
"  we  have  gone  too  far  into  the  improvement  doctrine, 
to  exclude  a  widow  from  her  claim  of  dower  of  lands, 
held  under  such  equitable,  though  imperfect  title,  so 
frequently  recognized  by  the  laws  and  usages  of  this 
state.  Ejectments  have  been  frequently  supported 
under  such  rights,  and  it  has  been  determined  that  a 
prior  improvement  under  Pennsylvania,  shall  prevail 
against  a  Virginia  certificate,  under  the  compact  be- 
tween the  two  states.  The  sale  of  improved  lands 
for  payment  of  debts  by  an  administrator  in  modern 

(a)  Shoemaker  v.  Walker,  2  S.  &  R.         S.  6. 

556.  (d)  2  Yeates,  168,  Dodson  v.  Davis. 

(6)  Ibid.  (e)  Ibid.  515. 

(e)  Bac.  Ab.  Tit.  uses  and  trusts  B 


398  OF  DOWER.  [BOOKV. 

times,  without  an  order  of  Orphan's  Court,  has  also 
been  declared  by  us  to  be  void.  With  what  propri- 
ety then,  can  we  consider  lands  held  by  settlement 
and  improvement  as  real  estates  sanctified  by  law  and 
custom  as  to  all  other  purposes,  except  the  solitary 
instance  of  the  dower  of  the  widow,  who  has  in  most 
cases  been  highly  instrumental  in  building  up  the 
title." 

The  widow  is  also  dowable  of  a  rent  charge,  (a) 

If  the  husband  seized  of  lands  in  fee,  exchange 
them  for  other  lands,  and  die,  the  widow  may  elect 
to  be  endowed,  either  of  the  lands  given  or  taken  in 
exchange,  because  the  husband  was  seized  of  both 
during  the  coverture,  but  she  cannot  have  dower  of 
both.  (6)  If  the  husband  convey  his  lands,  reserving 
rent,  the  wife  may  be  endowed  of  the  lands,  freed 
from  the  rent,  or  she  may  be  endowed  of  the  rent, 
but  not  of  both,  (c) 

There  cannot  be  dower  of  an  estate  in  dower, 
where  the  tenant  of  whose  estate  dower  is  last 
claimed,  is  in  by  continued  desjcentj  but  it  is  otherwise 
where  the  descent  is  broken  from  the  tenant  of  whose 
estate  the  first  estate  of  dower  is  had. 

As  if  there  be  grandfather,  father,  and  son,  and 
the  grandmother  be  endowed,  the  mother  shall  not 
be  endowed  of  the  grandmother's  thirds  after  her  de- 
cease, because  the  grandmother's  dower  defeats  the 
descent  to  the  father,  and  the  father  wras  seized  of  no 
more  than  two-thirds  of  that  land  (d)  But  if  the 
grandfather  had  enfeoffed  the  father  of  the  whole 

(a)  Bac.  Ab.  Dower,  B.  (c)  Ibid. 

(b)  Ibid.  E.  (d)  Bac.  Ab.  ib.  4  Co.  Litt.  122. 


CHAP,  ni.]  OF  DOWER.  399 

land,  and  died,  and  the  grandmother  had  been  en- 
dowed either  by  recovery  or  assignment,  there  the 
mother  should  be  endowed  of  the  grandmother's 
third  after  her  decease;  because  by  the  conveyance 
the  father  was  seized  of  the  whole  estate.  And  if 
there  be  grandfather,  father,  and  son,  and  the  two  first 
die,  and  the  mother  is  endowed  by  the  son  of  a  third 
part  of  the  whole,  and  the  grandmother  brings  a  writ 
of  dower  against  the  mother  and  recovers,  she  leaves 
the  reversion  in  her:  for  the  dower  was  vested  in  the 
mother  by  the  assignment  or  recovery,  and  is  defeat- 
ed during  the  life  only  of  the  grandmother,  whose  es- 
tate as  to  the  mother  is  less  than  her  own  estate,  (a) 

The  wife  cannot  be  endowed  of  an  estate  in  join- 
tenancy,  (6)  nor  of  a  mere  descendible  freehold; 
therefore,  if  a  man  make  lease  for  life,  rendering  rent 
to  him  and  his  heirs,  and  after  marry  and  die,  his  wife 
shall  not  be  endowed  of  this  rent,  because  it  is  but  a 
descendible  portion,  nor  of  the  land,  because  not 
seized  during  coverture,  (c) 

The  husband  must  have  the  freehold  in  him  simul 
et  semel,  otherwise  the  wife  shall  not  be  endowed; 
therefore,  if  lands  are  given  to  the  husband  for  life; 
remainder  to  B  in  tail,  remainder  to  the  husband  in 
fee  or  in  tail,  and  he  dies  leaving  B  or  any  of  his  is- 
sue his  wife  shall  not  be  endowed,  (d) 

Nor  shall  the  wife  be  endowed  of  a  mortgage  es- 
tate; for  if  the  money  be  paid  at  any  time,  equity  will 
relieve  against  the  claim  of  dower,  by  the  widow  of 
the  mortgagee,  (e)  . 

(a)  Co.  Litt.  31,  42.  (d]  Ibid. 

fl>)  Hac.  Ah.  Dower,  B.  3.  (e)  Ib.  note. 

(c)  Ibid. 


400  OF  DOWER.  [BOOK  v; 

The  tenant  in  dower  is  prohibited  by  the  law  from 
committing  waste,  by  altering  or  deteriorating  the 
estate,  (a)  But  it  has  been  decided,  that  she  may 
clear  woodland  assigned  her  in  dower,  without  being 
guilty  of  waste,  provided  she  does  not  exceed  the  re- 
lative proportion  of  cleared  land,  considered  as  to  the_ 
whole  land.  (6) 

SECTION  n. 

How  the  dower  of  the  wife  may  be  barred. 
The  wife  may  be  barred  of  dower,  1st.  By  the  re- 
covery of  the  estate  against  the  husband.  2d.  By 
jointure.  3d.  By  devise  in  lieu  of  dower.  4th.  Elope- 
ment with  an  adulterer.  5th.  By  divorce.  6th.  By 
alienage.  7th.  By  joining  in  the  conveyance  of  the 
estate  of  the  husband.  8th.  By  mortgage  made  by 
the  husband  and  sale  of  his  estate  for  the  payment  of 
debts. 

I.  If  the  husband  have  no  title  to  the  estate,  it  is 
obvious  that  a  recovery  against  him  ought  to  bar  the 
dower  of  the  wife,  as  her  title  is  based  upon  his  es- 
tate of  inheritance.     But  the  recovery  against  the 
husband  must  be  bona  fide,  and  not  by  covin  or  collu- 
sion, and  the  wife  may  at  all  times,  by  action  against 
the  terre-tenant,  compel  him  to  shew  title,  (c)  This 
action  is  given  by  13  Edw.  1,  which  is  in  force  with 
us.  (d) 

II.  Jointure  in  bar  of  dower  is  a  competent  liveli- 
hood of  freehold  for  the  wife,  of  lands  and  tenements, 
to  take  effect  in  profit  or  possession,  presently  after 

(a)  Co.  Litt.  53.  a.  b.  54.  A-  (cj  2  Insl.  349. 

(bj  Hastings  et  al.  v.  Crunkelton,  (d)  Robert's  Dig.  182. 

3  Yeates,  261. 


c HAP.  in. j  OF  DOWER.  401 

the  death  of  the  husband,  for  the  life  of  the  wife  at 
least,  (a)  Jointures  for  the  purpose  of  barring  the 
dower  of  the  wife  were  introduced  prior  to,  and  con- 
firmed by  the  enactment  of  the  stat  27,  Hen.  8,  c. 
10.  The  6,  7,  and  9th  sections  of  which  have  been 
adopted  in  Pennsylvania  (ft) 

In  creating  the  jointures,  these  four  requisites  must 
be  punctually  observed.  1st.  It  must  take  effect  im- 
mediately on  the  death  of  the  husband,  (c)  2d.  It  must 
be  made  to  the  wife  herself,  and  to  no  other  in  trust 
for  her.  (d)  3d.  It  must  be  for  her  life  at  least-,  (e)  and 
4th.  must  be  in  satisfaction  of  her  whole  dower,  and 
not  of  any  particular  part  of  it;  and  it  should  be  so 
expressed  in  the  deed,  though  it  may  be  averred  to 
be  so.  (/) 

If  the  jointure  be  made  after  marriage,  she  has  the 
election  after  the  death  of  the  husband  to  accept  or 
to  refuse  it,  and  to  betake  herself  to  her  dower  at 
common  law;  for  she  is  not  capable  of  consenting  to 
it  during  coverture,  (g) 

The  great  advantage  of  a  jointure  is,  that  the  wife 
may  enter  upon  her  estate  immediately  after  the  de- 
cease of  the  husband;  whereas  much  trouble,  and  a 
tedious  process  is  necessary,  to  compel  a  legal  as- 
signment of  dower.  And  the  British  writers  add 
another:  viz.  that  a  jointure  is  not  forfeited  by  the 
adultery  of  the  wife,  (h) 

A  jointure  made  before  marriage  is  equally  bind- 

(a)llnst.  36.                               »  ICh.  Ca.  181. 

(6)  Rep.  of  Judf.  Rob.  Digest.  408.  (g)  2  Com.   188.   Shaw  v    Boyd,  5. 

(e)4Co.  3.  S .  &R.  311.    1  Dall.  417. 

(d)  \  Inst.  36.  b.  (h)  Cox  P.   Wms.  277,  Jac.  L.aw 

(e)  Crok.  Eliz.  128,  Owen  33.  Diet.  Dower. 

(f)  Inst.  36,  b.  4  Rep.  3.  Dyer,  220. 

S  E 

; 


402  OF  ROWER  f 

ing  upon  the  wife,  whether  she  were  an  infant,  or 
of  full  age-,  and  concludes  her  not  only  as  to  her  dow- 
er in  her  husband's  lands,  but  also  as  to  her  claims 
under  the  statute  of  distribution  on  his  personal  pro- 
perty, (a) 

This  principle  was  recognized  here  by  the  case  of 
Shaw  v.  Boyd,  (b)  in  which  it  was  determined  that  a 
naked  contract  by  an  infant  in  expectation  of  mar- 
riage made  with  the  consent  of  her  parent  and  guar- 
dian is  not  sufficient  to  bar  her  dower.  The  case  was 
this:  A  female  infant  in  contemplation  of  marriage 
made  with  the  consent  of  her  parent  and  guardian, 
gave  her  bond  in  consideration  of  five  hundred  dol- 
lars, to  be  paid  to  her  by  her  intended  husband's  exe- 
cutors or  administrators  after  his  decease,  engaging  to 
release  her  dower  in  the  lands  of  which  he  should 
die  seized.  After  the  death  of  the  husband,  the 
five  hundred  dollars  were  paid  to  her,  and  she  by 
deed,  (being  still  a  minor)  released  her  dower  to  the 
heirs  and  representatives  of  her  deceased  husband, 
and  the  money  was  appropriated  by  her  second  hus- 
band to  his  own  use.  It  was  held,  that  she  was  not 
barred  from  her  right  of  dower,  but  that  she  might 
recover  in  an  action  of  dower,  without  refunding  or 
tendering  the  money  she  had  received.  Because 
there  was  in  fact  no  settlement  by  the  husband,  he 
having  executed  no  agreement  nor  bound  himself  or 
his  representatives,  and  that  the  bond  of  the  wife  did 
not  operate  as  as  an  implied  covenant  of  the  husband. 

And  though  the  definition  of  a  jointure  under  the 

(a)  Buckingham  v.  Drury,  Bro.  P.  C.  (b^S  S.  &  R.  311. 

tit.  Dower,  Ca.  4.  2  Eden's,  Rep.  39. 


.j  OF  DOWER.  403 

stat.  of  27  H.  8.  be  a  "  competent  livelihood  of  freehold 
for  the  wife,"  yet  it  is  fully  settled  that  her  dower 
may  be  barred  by  a  settlement  of  personal  estate.  («) 

III.  If  the  husband  devise  to  his  wife  a  portion  of 
his  estate  in  lieu  of  dower,  and  she  accept  it,  she  will 
be  barred  from  her  dower.  Before  the  passage  of 
the  act  of  4th  April,  1797,  (6)  the  intention  of  the 
husband  to  bar  the  dower  must  have  been  very  clear 
from  the  words  of  the  will;  it  could  not  be  inferred 
from  its  silence,  or  presumed  upon  conjecture.  For 
no  devise  to  a  wife,  even  of  an  estate  in  fee  simple, 
although  ten  times  more  valuable  than  her  dower, 
would  of  itself  have  barred  her  dower;  but  it  would 
have  been  considered  as  a  benevolence,  and  she 
would  have  been  entitled  to  both,  (c)  The  will  itself 
imports  consideration,  and  the  devisee  is  to  be  con- 
sidered a  purchaser.  And  dower  cannot  be  barred 
by  a  collateral  recompense,  (d) 

Where  the  devise  to  the  wife  was  not  declared  in 
the  will  to  be  in  lieu  of  dower,  the  law  would  inter- 
pose against  the  wife's  claim  of  dower  only  in  the 
following  cases.  1st.  Where  the  implication  of  the  in- 
terest of  the  testator  that  she  shall  not  have  both  the 
devise  and  the  dower  is  strong  and  necessary.  2nd. 
Where  the  devise  is  entirely  inconsistent  with  the 
claim  of  dower;  and  Sdly,  where  it  would  prevent 
the  whole  will  from  taking  effect;  that  is,  where  the 
claim  of  dower  would  overturn  the  will  altoge- 
ther, (e) 

(a)  Drury  v.   Drury,  5  Bro.  P.  C.  Webb. 

570.  Williams  v.  Chitty,  3  Ves.  (d)  I  Dall.  418,  &  cases  there  cited. 

545.  (e)  1  Dall.  418.  Hamilton  v.  Buck- 

(6)  3  Sm.  L.  300.  waiter,  2  Yeates,3tf'J.  M'CoIlough 

(c)  Kennedy   v.  Nedrow  Sf  ux.   1  v.    Allen,   3  Yeates,  10.  Addis. 

Dall.  418.1  Yeates  425.  Evans  v.  35 1 . 


404  OF  DOWER.  [BOOK  v. 

But  by  the  above  recited  act  it  is  provided,  that 
"  if  any  testator  after  the  passing  of  this  act,  shall  de- 
vise or  bequeath  to  his  wife  any  portion  of  his  estate, 
such  devise  or  bequest  shall  be  deemed  and  taken  to 
be  in  lieu  and  bar  of  her  dower,  out  of  the  estate  of 
her  deceased  husband,  in  like  manner  as  if  the  same 
were  so  expressed,  unless  such  testator  shall  by  his 
last  will  and  testament  declare  otherwise,  any  law, 
usage  or  custom  of  this  commonwealth  to  the  contra- 
ry notwithstanding:  Provided  always,  that  nothing  in 
this  section  contained,  shall  deprive  the  widow  of 
her  choice,  either  to  dower  or  to  the  estate  so  be- 
queathed (a) 

Many  inconveniences  arising  from  the  want  of  a 
prescribed  time  and  mode,  at,  and  by  which  such 
choice"  of  the  widow  should  be  made;  the  act  of  1st 
April,  1811,  was  enacted,  providing,  that  "  in  all  cases 
of  devises  or  bequests  to  widows,  which  by  force  of 
any  last  will  or  testament,  or  by  operation  of  law, 
will  bar  such  widow  of  her  dower,  subject  to  her 
right  of  election;  the  Orphan's  Court  on  the  applica- 
tion of  any  person  interested,  at  any  time  after  twelve 
months,  after  the  testator's  death,  may  issue  a  citation 
to  the  widow,  to  appear  at  a  certain  time,  not  less 
than  one  month  thereafter,  before  it,  to  make  her 
election,  either  to  accept  of  such  devise  or  bequest 
in  lieu  of  her  dower,  or  waive  the  same,  and  take 
her  dower;  of  which  election,  a  record  shall  be  made, 
which  shall  be  conclusive  to  all  parties:  But  the  re- 
fusal or  neglect  of  the  widow  to  appear  on  due  proof 

(a)  3  Sm.  L.  300. 


JHAP.  in.]  OF  DOWER.  405 

of  the  service  of  the  citation,  shall  be  deemed  an  ac- 
ceptance of  the  devise  or  bequest,  and  a  bar  of  dower, 
of  which  a  record  shall  be  made,  which  shall  be 
conclusive  to  all  parties  concerned,  (a) 

IV.  At  common  law,  elopement  was  no  bar  to  dow- 
er, although  a  divorce  from  bed  and  board  for  adul- 
tery had  been  obtained.      But  by  the  Stat.  13  Edw. 
1.  c.  35,  which  so  far  as  it  relates  to  this  subject  is  in 
force  here;  (6)  it  is  provided, "  that  if  a  wife  willingly 
leave  her  husband  and  go  away,  and  continue  with 
her  advouterer,  she  shall  be  barred  forever  of  action 
to  demand  her  dower,  that  she  ought  to  have  of  her 
husband's  lands,  if  she  be  convicted  thereupon;  ex- 
cept that  her  husband  willingly,  (and  without  coer- 
cion) reconcile  her,  and  suffer  her  to  dwell  with  him." 

Under  this  statute  it  has  been  decided,  that  if  the 
wife  be  forcibly  carried  away,  but  remain  willingly 
with  the  adulterer,  or  willingly  elope,  but  do  not  re- 
side with  him,  she  forfeits  her  dower,  (c) 

V.  By  our  laws  divorce  a  vinculo  matrimonii,  is  al 
lowed  for  causes,  antecedent  and  subsequent  to  the 
marriage.    The  causes  antecedent,   are  impotency, 
prior  marriage,  consanguinity,  or  affinity  within  the 
degrees  prohibited  by  law.  (d)    To  which  may  be 
added  the  common   law  disabilities  of  nonage   and 

^ 

want  of  reason,  (e)  The  causes  subsequent  are, 
adultery,  wilful  and  malicious  desertion  and  ab- 
sence without  cause  for  two  years,  and  for  cruelty 
of  the  husband  towards  the  wife.  (/)  In  cases 

(a)  5  Sm.  L.  257.  345.  Act  2  Ap.  1804. 

(6)  Rep.  of  Judges.  Rob.  Dig.  186.  (e)  1  Bl.  Com.  436,  et  seq. 

(c)  4  Inst.  433.  (/)  6  St.  L.  286.  Read's  continUa. 
(</)  Act.  19.  Sep.  1785.  <j  Sm.  L.  tion. 


406  ,        OF  DOWER.  [BOOK  v. 

of  divorce  for  causes  antecedent  to  the  marriage,  it 
is  clear  the  wife  cannot  claim  dower,  because  there 
was  no  legal  mamage.  («)  And  where  the  divorce 
is  for  causes  subsequent,  she  cannot  have  dower,  be- 
cause she  is  not  a  wife  at  the  time  of  the  husband's 
death.  And  the  6th  sec.  of  the  act  of  19th  Septr. 
1785,  (6)  declares  that  after  sentence  nullifying  or 
dissolving  the  marriage,  all  and  every  of  the  duties, 
rights,  and  claims,  accruing  to  either  of  the  parties, 
at  any  time  theretofore  in  pursuance  of  the  said  mar- 
riage shall  cease  and  determine. 

VI.  By  the  common  law  an  alien  cannot  be  en- 
dowed, (c)  There  is  no  express  recognition  of  this 
doctrine  in  Pennsylvania,  by  any  adjudged  case  re- 
ported; but  on  the  common  ground  of  disability  of 
aliens,  it  has  been  established  in  New  York  (rf) 

But  it  is  to  be  presumed,  that  when  the  law  of  the 
country  permits  ,m  alien  to  hold  estates  of  inheritance, 
that  the  dependant  estate  of  dower  will  have  place. 
Under  this  principle,  though  an  alien  widow  of  a  ci- 
tizen may  not  be  dowable,  yet  the  alien  widow  of  an 
alien  may  be  endowed  of  the  estate  of  the  husband, 
not  exceeding  five  thousand  acres  of  land.  Such  be- 

o 

ing  the  extent  of  lands,  which  the  alien  husband  by 
act  of  assembly  of  March  24th,  1818,  may  purchase 
within  the  state,  1o  be  held  as/it%,  and  to  all  intents 
and  purposes,  as  by  citizens.  And  where  the  alien 
takes  by  devise  or  descent,  his  estate  being  unlimit- 
ed by  law  as  to  amount,  his  widow  may  have  dower 
on  all  his  lands,  whatever  may  be  their  extent. 

(o)Ld.  Kaym.  531.  Bro.  Coverture.     (c)l  Inst.  31  b    32;  a. 

.(i.  (,;.  (</)   Kelly    v.    Harrison.  2  Johns- 

(b)  2  fc>m.  L.  345.  Rep.  29. 

I 


OHAP.  111.3  OF  DOWER.  407 

But  can  the  alien  wife  of  a  citizen  be  endowed? 
This  question  it  is  also  presumed  may  be  answered 
affirmatively,  provided  the  estate  in  dower  does  not 
exceed  five  thousand  acres  of  land.  Because  where 
the  law  allows  an  alien  to  purchase  an  estate  of  in- 
heritance to  that  extent,  it  cannot  be  supposed  to 
forbid  the  purchase  of  an  estate  not  of  inheritance. 
Omnis  majus  in  se  continet  minus.  And  a  title  by  mar- 
riage is  a  title  by  purchase,  (a) 

VII.  A  woman  may  be  barred  of  her  dower  by 
joining  her  husband  in  a  deed  of  conveyance  of  the 
land.  This  bar  to  dower  grows  out  of  the  custom  of 
Pennsylvania,  by  which  the  husband  and  wife  by 
joint  deed  of  conveyance  were  permitted  to  transfer 
even  the  estate  of  the  wife,  and  a  fortiori,  to  extin- 
guish her  claim  to  dower,  in  the  lands  of  the  husband. 
(fe)  Originally  such  deeds  were  held  valid,  without 
the  acknowledgment  or  separate  examination  of  the 
wife  before  a  judicial  officer;  (c)  though  such  ac- 
knowledgment and  examination  were  sometimes 
had.  But  doubts  arising  from  this  variance  in  the 
practice,  as  to  the  validity  of  such  conveyance,  the 
act  24th  February,  1770,  (d)  was  passed  to  quiet  dis- 
putes, and  establish  a  mode  by  which  husband  and 
wife  might  thereafter  convey  the  estate  of  the  wife. 

The  2d  section  of  this  act  provides,  that  where  any 
husband  and  wife  shall  incline  to  dispose  and  convey 
the  estate  of  the  wife,  or  her  right  of,  in  or  to  any 
lands,  tenements,  or  hereditaments,  whatsoever;  it 

(a)  Bl.  Com.  241.  (c)  Lloyd's  less.  v.    Taylor,  1  DalU 

(b)  Davy  &  Ux.  v.  Turner,  1  Dall.          17,  decided  in  1768. 
11  Rob.  Dig.  196.  (d)  1  Sm.  L.  307. 


408  OF  DOWER.  BOOK  v. 

shall  be  lawful  for  the  said  husband  and  wife  to  make, 
seal,  deliver  and  execute  any  grant,  bargain  and  sale, 
lease,  release,  feoffment,  deed,  conveyance,  or  assur- 
ance, in  law  whatsoever,  for  the  lands,  tenements,  and 
hereditaments,  intended  to  be  by  them  passed  and  con- 
veyed, and  after  such  execution  to  appear  before  one 
of  the  judges  of  the  Supreme  Court,or  before  one  of  the 
justices  of  the  county  court  of  Common  Pleas,  of  and 
for  the  county,  where  such  lands,  tenements,  and 
hereditaments  may  lie,  and  to  acknowledge  the  said 
deed  of  conveyance;  which  judge  or  justice  shall  take 
such  acknowledgment,  in  doing  whereof  he  shall  ex- 
amine the  wife  separate,  and  apart  from  her  husband, 
and  shall  read  or  otherwise  make  known,  the  full 
contents  of  such  deed  or  conveyance  to  the  wife,  and 
if  upon  such  separate  examination,  she  shall  declare, 
she  did  voluntarily,  and  of  her  own  free  will  and  ac- 
cord, seal,  and  as  her  act  and  deed,  deliver  the  said 
deed  or  conveyance,  without  any  coercion,  or  com- 
pulsion of  her  said  husband,  every  such  deed  or  con- 
veyance shall  be,  and  the  same  is  declared  to  be  good 
and  valid  in  law  to  all  intents  and  purposes,  as  if  the 
said  wife  had  been  sole,  and  not  covert,  at  the  time 
of  such  sealing  and  delivery. 

By  subsequent  acts  of  assembly,  the  judges  of  the 
Supreme  Court,  and  of  the  Court  of  Common  Pleas, 
the  justices  of  the  peace  of  the  several  counties,  and 
the  mayor  and  recorder,  of  the  city  of  Philadelphia, 
may  take  acknowledgments,  and  probates  of  deeds, 
and  conveyances,  touching  or  concerning  any  lands, 
tenements,  or  hereditaments,  lying  in  any  part  of  the 
state. 


«HAP.  HI.J  OF  DOWER.  409 

But  as  the  justice  of  the  peace  can  do  no  official 
act  nor  exercise  any  judicial  function  out  of  his  pro- 
per district  or  county,  an  acknowledgment  of  a  deed 
by  a.  feme  covert,  taken  in  one  county,  before  a  justice 
of  the  peace  of  another  county,  for  lands  lying  in  the 
county  for  which  he  is  a  justice,  is  void,  (a)  In  other 
words,  a  justice  cannot  take  the  acknowledgment  of 
a  deed,  when  he  is  not  in  his  proper  district. 

But  if  such  feme  covert,  after  the  death  of  her  hus- 
band do  any  thing  directly  or  indirectly,  in  affir- 
mance of  the  deed  she  will  be  barred  of  her  dower. 
As  if  she  join  as  executor,  in  a  suit  to  recover  the 
purchase  money,  for  the  lands  conveyed  by  such 
deed,  the  invalidity  of  the  deed  is  no  objection  to  the 
plaintiff's  recovery,  for  having  affirmed  the  deed 
by  the  suit,  for  the  purchase  money,  she  has  made 
her  election,  and  will  be  forever  barred  by  the  re- 
covery from  claiming  her  dower,  (b)  This  perhaps 
is  as  strong  a  case  as  can  be  put,  as  the  widow  con- 
sidered in  that  character  could  not  be  an  actor  in  the 
suit,  and  could  bring  it  merely  as  the  representative 
of  her  husband. 

In  order  therefore  to  bar  the  dower  of  the  wife, 
she  being  of  full  age  must  join  in  the  conveyance 
with  the  husband,  and  before  the  proper  authority; 
being  separate  and  apart  from  her  husband  examined; 
and  having  the  full  contents  of  the  deed  made  known 
to  her  by  the  person  taking  the  acknowledgment, 
must  declare  that  she  did  voluntarily  and  of  her  own 

(a)   Sharp   &    A  I.   v.  Anderson's      '6)    Sharp  &  Al.    v.    Anderson's 
Exrs.  7  S.  &  R.  43.  Act  22  freb.         Exrs.  7  S,  &  R.  43. 
1802.  sec.  ). 


410  OF  DOWER.  [BOOKV 

free  will  and  accord,  seal,  and  as  her  act  and  deed 
deliver  the  deed,  or  conveyance,  without  any  coer- 
cion or  compulsion  of  her  husband,  (a) 

These  substantial  requisites  by  which  the  interests 
of  married  women  were  intended  to  be  protected, 
must  appear  on  the  face  of  the  acknowledgment  to 
have  been  pursued,  or  the  wife  will  not  be  barred 
of  her  dower,  (fe) 

The  first  case  upon  this  subject  was  that  of  Watson 
v.  Bailey.  This  was  a  bargain  and  sale  of  the  wife's 
land  executed  by  husband  and  wife,  who  on  the  day 
the  deed  was  executed  appeared  before  a  judge  of 
the  Common  Pleas,  who  indorsed  upon  the  deed  the 
following  certificate:  "  Lancaster  county,  ss.  Per- 
sonally appeared  before  me  the  subscriber,  one  of  the 
justices  of  the  Court  of  Common  Pleas,  for  the  county 
aforesaid,  the  within  named  James  Mercer,  and  Mar- 
garette  his  wife,  and  acknowledged  the  above  written 
indenture  to  be  their  act  and  deed,  and  desired  the 
same  might  be  recorded.  She,  the  said  Margarette, 
being  of  full  age,  and  by  me  examined  apart.  In  tes- 
timony, &c."  This  certificate  was  held  to  be  de- 
ficient, in  not  stating  that  the  contents  of  the  convey- 
ance were  made  known  to  the  wife,  and  that  she 
voluntarily  consented  thereto:  The  court  decided 
that  the  conveyance  thus  acknowledged,  did  not  pass 
the  estate  of  the  wife,  and  refused  to  admit  parol 
evidence  of  her  declarations,  that  she  had  exe- 
cuted the  deed  voluntarily,  and  that  if  it  was  not  suf- 
ficient, she  would  execute  and  acknowledge  it  over 
again,  or  do  any  other  act  to  make  the  deed  valid. 

(a]  Evans  v.  Commth.  4  S.   &  R.     (6)  Watson  v.  Bailey.  1  Binn.  470. 
272  Kirk  v.  Dean.  2  Binn.  341. 


OIIAP.  in.]  OF  DOWER.  41 1 

So  where  a  certificate  merely  stated,  that  the  wife 
was  of  full  age,  and  separate  and  apart  from  her  hus- 
band examined,  and  the  contents  of  the  deed  made 
known  to  her,  without  stating  that  she  declared,  that 
she  executed  the  deed  voluntarily,  it  was  held  to  be 
insufficient. 

In  the  case  of  Kirk  v  Dean  (a)  the  husband  and 
wife  by  deed,  conveyed  the  estate  of  the  husband, 
but  the  wife  never  acknowledged  the  deed,  it  was  re- 
solved that  the  right  of  dower  of  the  wife  was  unim- 
paired by  the  deed,  which  she  did  not  acknowledge. 

So  where  husband  and  wife  executed  and  acknow- 
ledged a  deed  of  the  lands  of  the  husband,  but  it  did 
not  appear  by  the  certificate  of  acknowledgment  that 
she  was  privately  examined  by  the  justice  of  the 
peace,  the  supreme  court  unhesitatingly  overruled 
the  decision  of  the  court  below,  that  the  wife  had 
barred  her  dower,  (b) 

The  case  ofM'lntire  and  Ward  (c)  determined  that 
it  is  not  essential  to  use  the  words  of  the  act  in  relation 
to  the  acknowledgments  of  femes  covert  if  its  di- 
rections were  substantially  complied  with.  In  this  case 
it  was  contended,  on  the  authority  of  Watson  v.  Bailey, 
that  a  certificate  of  the  acknowledgment  must  set  forth 
that  the  contents  of  the  deed  were  made  known  to  the 
wife.  But  the  court  said  if  it  appears  from  the  whole 
certificate  that  the  contents  of  the  deed  were  known 
to  the  wife  it  is  as  effectual  as  if  the  magistrate  had 
certified  that  he  had  read  or  otherwise  made  them 
known  to  her.  Hence,  if  it  is  said  that  she  acknow- 

(a)  2  Binn.  341.  (c)  5  Binn.  296. 

(6)  Thompson  v.  Morrow.  5  S.  &B.  289. 


412  OF  DOWER.  [BOOK  v. 

ledged  the  premises  "  within  mentioned,"  or  the  like, 
to  be  the  right,  &c.  of  the  grantee,  it  is  good,  (a)  So 
where  a  certificate  was  given,  that,  "  the  said  M  and 
E  his  wife  came  before  the  subscriber,  a  justice,  &c. 
and  acknowledged  the  indenture  to  be  their  act  and 
deed,  and  desired  that  the  same  might  be  recorded  as 
such-,  the  said  E  being  by  me  separately  and  apart 
examined  from  her  husband,  she  being  of  full  age, 
Icnouing  the  contents,  and  freely  consenting  thereto," 
was  held  to  be  sufficient.  (6)     So  where  a  deed  was 
acknowledged  before  a  judge  of  the  common  pleas, 
for  Dauphin  county,  who  endorsed  his  certificate  on  the 
deed  that  the  grantors  personally  appeared  before  him, 
"  and  severally  acknowledged  the  said  indenture,  as 
their  act  and  deed  and  desired  that  the  same  might  be 
recorded  as  such;  she  the  said  Catherine  being  of  full 
age,  separate  and  apart  from  her  said  husband  by  me 
examined  and  the  full  contents  made  known  to  her 
voluntarily  consenting  thereto"     In  this  last  case  the 
court  said,  It  is  not  straining  the  expressions  "  volun- 
tarily consenting  thereto,"  too  far,  to  say  that  the  wife 
executed  the  deed  voluntarily,  and  that  is  sufficient, 
for,  if  the  execution  were  voluntary  it  was  without 
coercion  or  compulsion,  (c) 

In  the  case  of  Watson  v.  Mercer  (d)  which  was,  in 
all  respects,  similar  to  that  of  Watson  v.  Bailey  the 
latter  case  was  re-examined  and  confirmed.  And  Gib- 
son, J.  who  delivered  the  opinion  of  the  court,  repro- 
bated the  decision  in  JITJntire  and  Ward,  as  a  de- 
parture from  the  principle  established  by  Watson  v. 

!a)  5  Binn.  296  (c)  Shaller  v.  Brand.  6  Binn.  435 

b)  Lesse  of  Talhot.  v.  Simpson.  1 .    (rf)  6  S.  &  R.  49. 
Peters,  Rep.  188. 


«HAP.  in.]  OF  DOWER.  413 

Bailey,  namely,  "  that  the  requisites  of  the  acknow- 
ledgment, contemplated  by  the  act  of  assembly  should 
appear  on  the  face  of  the  certificate,  to  have  been 
substantially  complied  with."  It  must  therefore  now 
be  considered  as  settled  law,  that  the  declarations  of 
the  wife  that  she  voluntarily  consented  to  the  con- 
veyance, must  appear  upon  the  certificate.  On  this 
principle  was  the  subsequent  case  of  Fowler  v.  M' Clung 
decided,  (a) 

Although  the  certificate  of  acknowledgment  should 
state  that  the  wife  was  of  full  age,  yet  this  is  not  re- 
quired by  the  act  of  assembly  and  is  not  indispensa- 
bly. If  the  certificate  do  not  state  that  the  feme 
covert  was  of  full  age,  the  presumption  is  that  she  was, 
and  the  contrary  must  be  proven,  (fc) 

VIII.  And  lastly,  a  woman  may  be  barred  of  dower 
by  a  mortgage  made  by  the  husband,  and  by  the  sale  of 
his  estate  for  the  payment  of  debts.  By  acts  of  assem- 
bly of  1700  and  1705,  (c)  lands  were  made  equally 
liable  with  chattels  to  the  payment  of  debts-,  and 
judgment  and  execution  were  given  against  the  debt- 
or, his  heirs,  executors,  or  administrators.  Thus  a 
lien  was  created  which  fastened  upon  the  debtor's 
lands,  and  adhered  to  them  after  his  death,  to  the  ex- 
clusion of  all  inchoate  rights,  derived  from  himself. 
The  widow's  dower  being  but  an  inchoate  right,  to 
be  perfected  by  the  death  of  the  husband,  would  not 
take  precedence  of  the  debts  which  had  already  at- 
tached. Since  the  passage  of  these  acts,  the  under- 
standing appears  to  have  been  uniform,  that  the  de- 
cedent's debts  take  precedence  of  dower. 

(a)  6  S.  &  R.  142.  (c)  l  Sm.  &L.  7.  57. 

(6)  Talfaot  r.  Simmons.   1  Peters,  Rep.  188. 


OF  DOWER.  [BOOKV, 

The  first  judicial  notice  of  this  construction,  is  found 
in  the  case  of  Graff  v.  Smith's  administrators,  deter- 
mined in  1789.  President  Shippen  there  says,  a 
widow's  right  of  dower  commences  with  her  marriage: 
it  is  held  so  sacred  a  right,  that  no  judgment,  recog- 
nizance, mortgage,  or  any  incumbrance  whatever? 
made  %  the  husband  after  marriage,  can  at  common 
law  affect  her  right  of  dower-, 'even  the  king's  debt 
cannot  affect  her.  Yet  it  has  been  held  under  our  act 
of  assembly,  for  making  lands,  chattels  for  the  pay- 
ment of  debts,  that  as  to  lands  taken  in  execution  af- 
ter the  death  of  the  debtor,  the  widow  is  barred  of 
her  dower,  (a) 

In  Scott  v.  Crosdale  (6)  an  attempt  was  made  to 
discriminate  between  the  effect  of  a  sale  of  land  un- 
der afi.Ja.  and  a  levari  facias  on  a  mortgage,  execut- 
ed by  the  husband  alone  after  marriage.  This  was 
an  action  of  dower  against  the  defendant,  who  had 
purchased  lands  sold  by  the  sheriff  under  a  judg- 
ment on  a  scire  facias  on  a  mortgage.  But  the  court 
declared,  that  the  point  had  been  too  long  settled  to 
be  stirred  then,  and  that  judgment  must  be  for  the 
defendant,  (c)  In  support  of  the  general  principle, 
that  the  widow  is  entitled  to  dower  in  the  clear  re- 
sidue only,  of  the  husband's  estate,  in  the  argument 
of  the  foregoing  case,  the  case  of  Howel  v.  Leacock 
was  cited,  in  which  a  sale  of  mortgaged  lands  by  ex- 
ecutors, for  the  payment  of  debts,  under  a  power  in 
the  will,  and  with  the  consent  of  the  mortgagee,  was 
determined  to  bar  the  widow's  dower.  And  in  con- 
formity with  this  principle,  is  the  spirit  of  the  statutes 

(a)  J  Dall.  489.  (c)  Ibid . 

(b)  1  Dall.  127.  1  Yeates,  75. 


CHAP,  in.]  OF  DOWER.  415 

of  distribution,  which  we  shall  presently  consider  in 
relation  to  this  subject. 

But  though  dower  be  barred  by  the  sale  of  lands, 
for  the  payment  of  debts  under  a  judgment,  by  the 
directions  of  a  will,  and  by  an  order  of  the  Orphan's 
Court,  yet  an  assignment  of  his  estate  by  the  husband 
to  trustees  for  the  benefit  of  his  creditors,  does  not  so 
operate.  For  where  one  in  insolvent  circumstances, 
conveyed  all  his  estate  to  trustees  for  the  benefit  of 
his  creditors,  and  the  trustees  sold  the  real  estate,  and 
applied  the  proceeds  to  the  payment  of  the  debts  of 
the  insolvent,  and  afterwards  the  insolvent  executed 
an  obligation  to  the  trustees  for  the  payment  of  mo- 
ney, and  died  intestate,  having  judgments  unsatisfied 
against  Him,  it  was  held,  that  the  widow  was  not  bar- 
red by  the  assignment,  and  might  recover  her  dower 
in  an  action  against  the  vendee  of  the  trustees  of  the 
husband,  (a)  The  court  said  they  saw  no  difference 
between  the  present  conveyance,  and  one  given  for 
a  money  consideration,  where  the  vendor  with  the 
amount  of  the  sales,  pays  off  his  judgments  and  other 
debts.  That  under  sales  by  execution  and  by  order 
of  the  Orphan's  Court,  the  purchasers  come  in  by 
act  of  law,  and  there,  positive  institutions  exclude  her 
from  dower. 

And  where  a  husband  was  seized  during  marriage 
of  lands  in  tail,  which  were  sold  under  judgments 
obtained  against  him,  the  wife  was  not  barred  of  her 
dower,  because  the  interest  of  the  husband  only  could 
be  sold,  which  was  a  life  estate  merely.  Nor  did  his 
suffering  a  common  recovery,  to  which  the  wife  was 

(a)  Keller  v.  Michael.  Yeates,  300. 


416  OF  DOWER.  [BOOK  v5 

not  a  party  bar  her,  because  her  concurrence  in  the 
recovery  was  not  necessary  to  that  effect,  (a) 

But  if  the  husband  give  a  fraudulent  mortgage  to 
defeat  the  wife's  right  of  dower,  it  is  void,  as  to  that 
right,  and  as  to  creditors.  And  she  may  defend  her- 
self in  the  suit  brought  by  scire  facias  on  the  mort- 
gage against  the  husband's  representatives,  (b)  A 
fraudulent  judgment,  or  a  fictitious  debt,  are  within 
the  reason  of  the  law,  and  consequently  subjected  to 
the  same  rule. 

SECTION  III. 

Of  the  rights  of  the  widow  under  the  Intestate  Laivs. 

In  cases  oT  intestacy,  the  rights  of  the  wife  in  the 
estate  of  the  husband,  are  subjected  to  many  regula- 
tions, inconsistent  with  the  estate  in  dower  at  the 
common  law,  and  are  greatly  enlarged  if  the  hus- 
band die  without  issue.  In  all  cases  except  one,  the 
corporeal  estate  of  the  wife  is  changed  into  an  incor- 
poreal one-,  her  right  of  possession  to  the  land  being 
converted  into  a  right  of  receiving  an  ascertained 
annual  interest  thereupon.  This  will  be  fully  under- 
stood, by  a  view  of  the  several  parts  of  the  intestate 
laws  relating  thereto. 

By  the  3rd  section  of  the  act  of  19th  April,  1794. 
the  remaining  part  of  any  land,  tenements,  and  here- 
ditaments, and  personal  estate  of  any  decedent,  not 
sold  or  disposed  of  by  will,  nor  otherwise  limited  by 
marriage  settlement  shall  be  divided  and  enjoyed  in 
manner  following,  &c.  If  the  intestate  leave  a  widow 

(a)  Sharp  v.  Petit.  1   Yeates-  389. 

(b)  Killinger  v.  Redenliaur.  8  b.  fc  R.  531 


CHAP. in.]  "RIGHTS  OF  WIDOW.  417 

and  lawful  issue,  the  widow  shall  be  entitled  to  one- 
third  part  of  the  real  estate,  during  her  life,  and  to 
one  third  of  the  personal  estate  absolutely. 

And  by  the  4th  section  of  the  same  act,  if  the  in- 
testate leave  a  widow,  and  no  lawful  issue,  the  wi- 
dow shall  have  one  moiety,  or  half  part  of  the  real 
estate,  including  the  mansion-house,  during  her  life; 
except  in  cases  where,  in  the  judgment  of  the  Or- 
phan's Court,  the  estate  cannot  with  propriety  be  di- 
vided: in  that  case  she  shall  have  the  rents  and  profits 
of  one  moiety  of  the  real  estate,  during  life,  and  one 
moiety  of  the  personal  estate  absolutely. 

And  by  the  13th  section,  the  share  of  the  estate  of 
the  intestate,  in  this  act  directed  to  be  allotted  to  the 
widow,  is  declared  to  be  in  lieu  of  her  dower  at  com- 
mon law. 

The  three  foregoing  sections  determine  the  w<an 
turn  of  the  widow's  interest  in  the  estate  of  an  intes- 
tate husband  in  two  cases   in  one  of  which  she  must 
always  be  placed,  that  of  the  death  of  the  husband, 
leaving  issue,  or  of  his  death,  leaving  no  issue. 

We  proceed  now  to  consider  the  manner  by  which 
the  widow  may  be  vested  with  this  interest,  in  the 
real  and  personal  estate.  And  first  of  the  real  estate. 

I.  By  the  ^2d.  section  of  the  foregoing  act,  the 
widow  or  relict,  of  an  intestate,  may  apply  to  the 
Orphan's  Court,  of  the  county  in  which  the  lands  of 
the  intestate  lie,  to  grant  an  order  or  writ  of  inquest, 
to  make  partition  thereof,  according  to  the  intent  of 
the  act,  and  upon  the  return  of  the  order  or  writ, 
if  the  proceedings  be  correct,  the  court  give  judg- 
ment, that  the  partition  thereby  made,  remain  firm 

3  o 


418  RIGHTS  OF  WIDOW.  [BOOK  v, 

and  stable  forever,  and  that  the  costs  be  paid  by  the 
parties  concerned. 

If  the  estate  can  be  divided  amongst  the  widow 
and  children  of  the  intestate,  without  prejudice  to,  or 
spoiling  the  whole,  partition  should  be  made  accor- 
dingly, (a)  and  the  portion  of  the  widow  and  each  of 
the  children,  should  be  particularly  set  out  by  metes 
and  bounds  in  the  return.  Such  partition  may  also 
be  made  mutatis  mutandis,  where  the  intestate  died 
leaving  a  widow,  but  no  issue,  yet  leaving  other  re- 
presentatives. (6) 

The  case  of  Young  v.  Bickel,  has  developed  an  im- 
portant omission  in  the  intestate  laws,  which  must 
affect  many  estates,  and  which  can  be  wholly  reme- 
died by  the  legislature  only.  It  was  a  case  where 
the  fee  simple,  and  the  annual  value  of  the  lands 
greatly  differed,  and  where  an  equal  partition,  accor- 
ding to  the  annual  value,  however  just  between  the 
parties  entitled  to  the  immediate  possession,  worked 
great  injustice  to  those  in  the 'remainder.  A  died 
intestate,  leaving  a  widow  who  intermarried  with  B, 
a  father,  one  brother  and  one  sister:  B  petitioned  the 
Orphan's  Court,  for  a  partition  of  the  real  estate  of  A, 
between  himself,  in  right  of  his  wife,  and  the  repre- 
sentatives of  A.  In  pursuance  of  an  order  of  court, 
an  inquisition  was  held,  and  the  estate  divided  into 
two  parts,  (said  to  be  equal)  one  of  which  was  assign- 
ed to  B,  in  right  of  his  wife,  and  the  other  to  the 
father.  This  partition  was  confirmed  by  the  Orphan's 
Court,  from  whose  decree  an  appeal  was  made  to  the 

(a)  Young  v.  Bickel.  1  S.  &  R.  467. 

(6  Act  of  1797.  sec.  8.  YouOg  v.  Bickel.  1  S.&R.467.  and  see  Supra,  355. 


BHAP.  m.;]  fcTGHTS  OF  WIDOW.  419 

Supreme  Court.  The  fee  simple  value  of  the  pro- 
perty assigned  to  B,  was  1600  pounds,  and  that  to 
the  father  was  500  pounds,  but  the  annual  value  or 
rent  of  the  respective  parts  was  eighty  dollars.'' 

It  was  excepted  for  the  appellant,  that  the  par- 
tition was  manifestly  unequal  between  the  widow 
and  brother  and  sister,  who  would  take  on  the  death 
of  the  father,  the  part  adjudged  to  him;  and  the  judg- 
ment being  that  the  partition,  should  remain  firm 
and  stable  forever,  they  would  be  bound  by  it  if  it 
were  established.  That  there  could  not  be  two  in- 
quisitions upon  one  estate:  That  there  was  no  pro- 
vision in  our  statute  similar  to  that  in  the  stat.  32, 
Hen.  VIII.  providing  that  partition  between  joint 
tenants,  and  tenants  in  common  for  life  or  years, 
should  not  affect  the  remainder  man,  or  reversioner. 

For  these  reasons  the  judgment  of  the  Orphan's 
Court  was  overruled. 

When  cases  of  this  kind  occur,  justice  may  be  sa- 
tisfactorily done  between  the  parties,  by  the  inquest 
returning  a  valuation  of  the  estate  and  that  it  cannot 
be  conveniently  divided  between  the  widow  and  the 
representatives;  and  thus  her  interest  on  her  propor- 
tion of  the  value  nidy  be  charged  upon  the  whole  es- 
tate. 

If  the  inquest  return  that  the  estate  cannot  be  di- 
vided, without  injury  thereto,  the  valuation  is  also  to 
be  returned;  and  if  the  estate  be  adjudged  to  any  of 
the  children  or  representatives,  the  widow's  portion 
remains  charged  upon  the  premises,  and  the  interest 
thereof  is  to  be  annually  and  regularly  paid  to  her, 
during  life,  by  him,  to  whom  the  estate  is  adjudged.. 


420  RIGHTS  OF  WIDOW.  [BOOK  y. 

his  heirs  or  assigns  holding  the  lands,  to  be  recovered 
by  the  widow  by  distress  or  otherwise  as  rents  are 
usually  recove  ed.  (fi) 

If  the  inquest  find  that  the  lands  may  be  divided  so 
as  to  accommodate  all  or  more  than  one  of  the  chil- 
dren, or  representatives,  and  they  be  so  adjudged,  the 
widow's  part  in  each,  according  to  the  valuation 
made  by  the  inquest,  shall  remain  charged  upon  the 
shares  respectively  and  the  interest  shall  be  paid  and 
in  default  of  payment  may  be  recovered  in  the  same 
manner  as  when  the  estate  is  adjudged  to  one  of  the 
heirs  or  representatives.  (6) 

But  if  the  estate  cannot  be  divided,  or  the  heirs  or 
representatives  refuse  to  take  it,  at  the  valuation-,  or 
if  it  be  riivided  into  fewer  number  of  parts  than  there 
are  children  and  representatives,  and  the  heirs  or  rep- 
resentatives refuse  to  take  the  several  portions,  or  any 
of  them,  at  the  valuation,  the  lands,  so  rejected,  shall  be 
sold. 

Hith  rto  the  intestate  laws  have  assigned  and  pro- 
tected the  widow's  interest  with  considerable  particu- 
larity and  certainty.  But  after  the  sale  of  the  estate, 
on  refusal  of  the  heirs  to  take  it,  at  the  valuation,  no 
mode  of  securing  such  interest  is  given  by  the  stat- 
utes. The  2nd  sec.  of  the  act  of  2nd  April  1804  simply 
provides,  that  upon  such  sale  being  made,  and  return 
thereof  to  the  court,  they  shall,  on  motion  of  the 
purchaser,  confirm  the  sale,  subject  to  the  payment 
of  the  purchase  money,  according  to  the  terms  pre- 
scribed by  the  court  in  the  order  of  sale;  and  shall 

(a)  Act.  1794.  s.  22.  3  Sm.  L.  152. 
(6)  Act.  1794.  Sec.  22.  Act  of  1807.  s.  6. 


.  in.]  RIGHTS  OF  WIDOW.  42) 

cause  the  proceeds  to  be  distributed  in  such  manner 
as  according  to  law  and  justice  may  be  proper.  These 
proceeds  come  into  the  hands  of  the  executor  or  ad- 
ministrator but  are  distributable  as  real  estate-,  (a) 
and  the  widow  is  entitled  to  no  more  than  the  inte- 
rest arising  on  one-third  thereof,  during  her  life.  (6) 
It  yet  remains  to  inquire  in  what  way,  this  third  may 
be  secured. 

The  court  having  power  to  prescribe  the  terms  of 
sale,  it  is  their  practice  to  direct  the  widow's  share  to 
remain  charged  upon  the  premises,  and  the  interest 
thereof  to  be  paid  to  her  or  her  assigns  by  the  purcha- 
ser or  his  heirs  or  assigns.  If  the  purchase  money 
be  paid,  the  court  may  direct  it  to  be  vested  during 
the  life  of  the  widow  in  such  securities  as  they  may 
think  proper,  the  interest  to  be  received  by  her  or 
her  assigns  during  her  life.  This  must  generally  be 
the  case  when  the  estate  of  the  husband  is  sold  un- 
der execution  or  by  order  of  the  Orphan's  Court, 
for  the  payment  of  his  debts  and  there  is  a  residue 
after  the  payment  of  debts.  The  wife  is  entitled  to 
the  interest  on  the  one-third  or  the  one-half  of  this 
residue  as  the  case  may  be. 

There  are  inconveniences  attending  both  these 
modes.  The  first,  though  much  the  better,  places  the 
wife  in  a  worse  situation  than  she  would  be,  if  the 
estate  were  adjudged  to  the  heir  or  representative,  as 
her  remedy,  in  case  of  neglect  or  refusal,  must  be  by 
action  upon  the  bond  or  mortgage,  instead  of  by  dis- 
tress. In  the  second  case  it  may  be  sometimes  neces- 

(a)  Dillon  v.  Young.  2  Ycatos.  261.     (1}  Crostoo's  case,  cited  in  Dillon. 

v.  Young. 


422  RIGHTS  OF  WIDOW. 

sary  to  change  the  security,  the  money  may  lie  idle, 
it  may  be  paid  into  the  hands  of  the  executor  or  ad- 
ministrator, and  may  be  lost. 

There  is  one  case  in  which  a  wife  takes  the  whole 
estate  of  an  intestate  husband,  real  and  personal. 
This  does  not  grow  out  of  the  general  system  of  dis- 
tribution, but  may  be  considered  as  a  legislative  do- 
nation of  escheated  estates.  Anterior  to  the  act  of 
January,  1810,  the  estates  of  persons  dying  without 
heirs  or  other  known  kindred,  escheated  to  the  com- 
monwealth, to  the  exclusion  of  the  surviving  hus- 
band or  wife.  But  in  most  cases,  the  right  of  the  es- 
tate was  on  petition  granted  to  such  husband  or 
wife,  or  to  the  persons  nearest  to  the  intestate  by 
blood  or  affinity.  By  that  act  it  is  provided,  "  That 
any  person  who  hath  died,  or  shall  «lie,  intestate, 
leaving  a  wife  or  husband,  and  no  heirs  or  other 
known  kindred,  and  being  seized  or  possessed  at  the 
time  of  his  or  her  death  of  real  or  personal  estate,  the 
same  shall  vest  in  and  be  enjoyed  by  such  wife  or 
husband,  and  she  or  he  shall  hold  the  same  for  such 
estate  as  the  decedent  had  or  held  therein,  (a) 

II.  The  husband  may  dispose  of  his  personal  es- 
tate by  will,  and  thus  prevent  the  wife  from  recei- 
ving any  part  of  it.  But  if  he  do  not  dispose  of  the 
whole  of  his  personal  estate  by  will,  the  undisposed 
residue  is  to  be  distributed  amongst  the  next  of  kin, 
agreeably  to  the  intestate  laws.  (6)  The  next  of  kin 
does  not,  under  the  English  law,  include  the  wife,  (c) 
and  the  use  of  the^e  words  in  the  statute  might  throw 

(aN  7tt,  1.142  (c)  14  Vez.  Jr.  372. 

(ft)  Act  7tb  April,  i807,  sec.  11. 


OHAP.  in.]  RIGHTS  OF  WIDOW. 

some  doubts  on  the  construction  of  the  act.  But  as 
the  court  have  considered  the  act  of  187  to  be  in 
affirmance  of  the  pre  existing  laws,  and  in  the  case 
of  Wilson  v.  Wilson,  wbk  h  arose  antecedently  to  the 
statute,  have  permitted  the  widow  to  recover  her  por- 
tion of  the  undisposed  residue,  the  law  must  be  con^ 
sidered  as  embracing  the  wife.  Any  other  construc- 
tion would  produce  this  absurdity,  that  the  wife 
might  receive  her  share  in  all  the  real  estate  of  her 
husband  undisposed  of  by  will,  and  be  excluded  from 
the  undisposed  residue  of  his  personal  estate.  The 
true  construction  is,  that  the  husband  is  intestate  of 
all  property  which  he  does  not  dispose  of  by  will 


BOOK  VI. 

OF  GUARDIAN  AND  WARD. 
Of  the  several  species  of  guardians. 

A  guardian  is  one  who  legally  has  the  care  and 
management  of  the  person  or  estate,  or  both,  of  a 
child,  during  his  minority,  (a) 

In  the  English  law  there  are  usually  enumerated 
five  species  of  guardians.  1st.  By  nature.  2nd.  ;<For 
nurture.  3d.  In  socage.  4th.  Testamentary,  and -5th. 
Statutory.  Four  of  these  only,  belong  to  our  law; 
the  first,  or  guardian  by  nature,  being  inconsistent 
with  our  political  institutions.  * 

I.  The  guardian  by  nature  is  the  father  or  mother, 
who  have  a  right  to  the  care  of  the  person  of  the  heir 
apparent,  until  he  attain  the  age  of  twenty-one  years. 
Judge  Reeves,  in  his  treatise  on  domestic  relations,  is 
of  the  opinion,  that  though  this  species  of  guardian- 
ship is  for  the  heir  only,  it  embraces  all  the  children 
here;  for  in  the  United  States  all  the  children  toge- 
ther, constitute  the  character  known  in  the  English 
law  by  the  term  heir.  But  if  it  be  recollected  that 
this  is  a  guardianship  at  common  law,  and  of  the  heir 
at  common  law,  it  will  perhaps  appear  conclusively, 
that  it  has  no  existence  in  this  country,  unless  where 
the  heir  at  common  law  is  still  to  be  found  among  us. 
And  as  this  rarely  happens,  we  may  be  justified  in 

(a)  1  Blac.  Com.  460.  Reeve's  Dom.  Relations,  311. 


CHAP.  L]  OF  GUARDIAN  AND  WARD.  435 

considering  only  four  species  of  guardianship,  by  nur- 
ture, by  socage,  by  testament,  and  by  statute. 

I.  The  laws  of  all  well  regulated  states  have  im- 
posed on  parents  the  duty  of  protecting  and  main- 
taining their  offspring:  and  happily  nature  has  made 
the  care  of  our  children  its  own  reward,  the  de- 
sire of  their  wdKare  being  a  passion  not  easily  eradi- 
cated. In  making  it  the  duty  of  the  parent,  she  has 
also  established  it  as  his  right,  with  which  none  shall 
interfere,  whilst  he  is  morally  and  physically  com- 
petent to  discharge  the  trust,  to  watch  over,  guide, 
and  protect  his  child.  Hence  arises  the  guardian- 
ship for  nurture,  which  may  be  in  the  father  or  mo- 
ther, or  both,  (a)  and  continues  from  the  birth  of  the 
children  until  their  age  of  fourteen  years,  unless  su- 
perseded by  either  of  the  other  species.  The  guar- 
dian by  socage  and  by  testament,  are  preferred  to 
that  by  nurture.  And  the  Orphan's  Court  have  pow- 
er under  the  act  of  1713,  to  assign  the  guardianship 
of  minors  under  fourteen,  to  whom  it  thinks  proper, 
according  to  its  legal  discretion,  which  discretion  is 
confined  to  the  choice  of  persons  of  the  same  reli- 
gious .persuasion,  of  good  repute,  and  approved  by 
the  orphan,  (b) 

But  it  may  sometimes  happen  that  the  father  and 
mother  may  contend  for  the  exclusive  guardianship  of 
the  children,  or  the  immoral  character  of  both  may 
render  them  unfit  to  take  charge  of  their  offspring. 
•  In  the  first  case  the  court  have  the  power  to  decide 
to  which  of  the  parents  the  children  shall  be  com- 

(o)  Moore,  738.  3  Rep.  38.   1  Harr.  (6)  1  Dall.  136.  Graham's  Ap- 

Ch.  766,  I  Co.  Litt.  88,  n.  r.  12.  peal. 


426  OF  GUARDIAN  AND  WARD.         [BOOK  vi. 

mitted.  (a)  In  the  exercise  of  their  discretion  they 
Will  have  due  regard  to  the  sex  and  age  of  the  chil- 
dren. As  where  the  parents  of  two  female  children 
had  been  divorced  on  account  of  the  adultery  of 
(he  mother,  the  court  refused  to  deliver  the  custody 
of  the  infants  to  the  father,  although  the  mother  was 
at  that  time,  living  with  the  adulterer^lhaving  married 
him  contrary  to  the  act  of  assembly,  the  infants  being 
of  tender  age,  and  requiring  that  kind  of  assistance 
which  can  be  afforded  by  none  as  well  as  a  mother, 
and  her  conduct  having  been  free  from  blame  as  it 
regarded  her  treatment  of  them,  (b)  But,  at  a  subse- 
quent period,  the  children  having  arrived  at  an  age 
when  their  morals  were  likely  to  be  injured  by  bad 
example,  the  court  delivered  them  to  the  care  of  the 
father,  (c) 

And  where  both  father  and  mother  are  persons  of 
immoral  character,  the  court  may  order  a  child  to  be 
put  under  the  care  of  a  third  person,  or  may  take  it 
from  the  parents'  power,  and  suffer  it  to  provide  for 
itself,  (d) 

II.  The  guardianship  in  socage  takes  place  where 
socage  lands  descend  to  the  minor,  under  the  age  of 
fourteen  years,  and  ceases  when  the  infant  attains 
fourteen  years.  By  the  common  law,  the  guardian- 
ship belongs  to  the  next  of  kin,  who  cannot  by  any 
possibility  inherit  his  estate.  As  where  the  estate 
descended  from  the  part  of  the  father,  the  uncle,  on 
the  mother's  side  being  excluded  from  the  inheri- 
tance by  law,  shall  be  the  guardian,  (e) 

(a)  Com.  v.  Addicks  &  Wife,    5     (e)  Com.  v,  Addicks,  2  S.  &R.  174. 

Binn.  520.  (d)  Com.  v.  Nutt.  1  Browne,  143. 

(6)  Com.  v.  Addicks,  5  Binn.  520.     (e)  Litt.  sec.  123.    1  Bl.  Com.  461. 


CHAP,  i.]  OF  GUARDIAN  AND  WARD.  427 

This  species  of  guardianship  may  perhaps  exist  in 
all  cases  where  there  are  lands  by  descent,  if  evparte 
paterna,  then  the  nearest  relation  of  the  side  of  the 
mother  will  be  guardian,  because  even  under  our  in- 
testate laws,  such  relation  cannot  inherit,  and  so  vice 
versa.  Such  nearest  relation,  who  first  takes  posses- 
sion of  the  person  of  the  ward,  is  entitled  to  the  guar- 
dianship of  his  person  and  estate,  (a) 

But,  whether  in  fact,  there  be  a  guardian  in  socage 
in  Pennsylvania  must  depend  upon  the  question, 
whether  there  be  any  socage  tenure  in  this  state;  for 
guardianship  by  socage  springs  wholly  from  tenure, 
and  the  title  cannot  arise  unless  the  infant  is  seized  of 
lands,  or  other  hereditaments  lying  in  tenure,  holden 
by  socage.  (6) 

Is  there  then  any  socage  tenure  in  Pennsylvania, 
or  is  all  the  property  in  the  state  purely  allodiaH 

Certain  principles  growing  out  of  the  feudal  system 
have  with  little  alteration  pervaded  all  Europe,  and 
were  brought  hither  by  our  ancestors.  Amongst 
these  was  the  tenure  by  socage.  The  grant  to  Penn 
unequivocally  recognized  this  principle,  and  the  ten- 
ure by  which  he  held  the  province  was  that  of  free 
and  common  socage,  with  the  incidents  of  fealty,  es- 
cheat and  rent.  To  the  time  of  the  revolution  it 
is  unquestionable  that  all  the  lands  of  the  state  were 
held  by  this  tenure.  Did  that  event  and  the  conse- 
quent assumption  of  sovereign  power  destroy  this 
tenure,  or  did  it  only  change  the  lord  of  the  fee,  and 
transfer  all  the  rights  appertaining  to  the  crown  of 

(a)  Co.  Lit.  87  89.  (6)  Harg,  Co.  Litt.  87,  88,  8.9,  note 

13. 


428  OF  GUARDIAN  AND  WARD.  BOOK  vr, 

Great  Britain,  to  the  government  established  in  the 
state. 

According  to  the  genius  of  the  British  constitu- 
tion all  lands  in  Pennsylvania,  were  held  mediately 
from  the  crown.     The  paramount  right  of  the  king, 
was  either  a  personal  or  a  political  right;  if  a  personal 
right,  it  was  independent  of  political  relations,  and 
must  still  exist  notwithstanding  the  severance  of  the- 
political  connection    between  the  countries,  unless 
destroyed  by  competent  authority.     Such  authority 
certainly  existed  in  the   legislature  of  the  indepen- 
dent state  of  Pennsylvania,  and  was  exercised  by  the 
act  of  27th  November,   1779,  entitled  "an  act  for 
vesting  the  estates  of  the  late  proprietors  of  Pennsyl- 
vania, in  this   commonwealth."    The  oth  section  of 
this  act  declares,  "  That  all  the  estate,  right,  title, 
interest,  property,  claim  and  demand,  of  the  heirs 
and  devisees,  grantees,  or  others  claiming  as  proprie- 
taries of  Pennsylvania,   of,  or  into  the  soil  and  land, 
contained  within  the  limits  of  the  late  province,  now 
state  of  Pennsylvania,  or  any  part  thereof,  together 
with  the  royalties,  franchises,  lordships,  and  all  other 
the  hereditaments,  and  premises  comprised,  mention- 
ed, and  granted,  in  the  charter  or  letters  patent  of 
king  Charles  the  second,  (except  as  herein  excepted,) 
shall  be  and  they  are  hereby  vested  in  the  common- 
wealth of  Pennsylvania,  for  the  use  and  benefit  of  the 
citizens  thereof;  freed  and  discharged,  and  absolutely 
acquitted,  exempted,  and  indemnified,  of  and  from  and 
against  all  estates,  uses,  trusts,  entails,  reversions,  re- 
mainders,  limitations,    charges,   incumbrances,  titles, 
claims,  and  demands  whatsoever Jrom  or  wider  the  said 


CHAP,  i.]  OF  GUARDIAN  AND  WARD.  429 

charter,  or  letters  patent."  Any  estate  right  or  title, 
which  the  king  could  have  had  from  by  or  under 
the  charter,  of  Charles  II,  was  by  this  act  annulled, 
and  destroyed.  And  though  the  right  of  the  king 
was  a  political  right,  the  words  of  this  act  of  assembly 
are  sufficiently  comprehensive  to  destroy  it.  But  by  the 
preamble  to  the  constitution  of  1776,  "all  allegiance 
and  fealty  to  the  said  king  and  his  successors,"  "  and 
all  power  and  authority  derived  from  him,'*'  are  de- 
clared to  "  be  dissolved  and  at  an  end."  Thus  all 
relations  public  and  private,  between  the  king  of 
Great  Britain  and  Pennsylvania,  were  completely 
destroyed,  and  the  estate  of  the  proprietary,  in  the 
unappropriated  lands,  entirely  divested. 

The  estate  of  the  commonwealth,  in  such  lands, 
held  unfettered,  and  of  no  earthly  superior,  must  be 
allodial,  and  not  of  socage  tenure.  And  such  estate 
as  the  commonwealth  held,  must  have  passed  and 
must  still  pass  to  its  grantees,  unless  qualified  by  the 
grant  to  them.  No  such  qualification  exists.  Con- 
sequently there  is  no  socage  tenure  in  Pennsylvania-, 
unless  a  distinction  can  be  taken  between  lands  gran- 
ted by  the  state  since,  and  those  by  the  proprietaries, 
anterior  to  the  revolution.  But  if  this  distinction  be 
taken,  to  whom  are  the  services  of  the  tenure  due? 
Not  to  the  king  of  Great  Britain;  for  all  relations  be- 
tween the  citizens  and  him  have  ceased;  nor  to  the 
proprietaries-,  for  all  their  rights  except  those  reserv- 
ed by  the  act  of  assembly  are  taken  away. 

If  any  doubt  remain  of  the  non-existence  of  socage 
tenure  in  Pennsylvania,  and  of  the  consequent  right 
of  guardianship  in  socage,  sound  policy  would  induce 


430  OF  GUARDIAN  AND  WAHD.          [BOOKVI, 

a  determination  against  such  tenure  and  dependent 
right.     For  the  guardian  in  socage,  obtains  posses- 
sion, and  the  power  to  dispose  of  the  real  and  personal 
estates  of  his   wards,  without   those   precautionary 
inquiries,   which    usually    attend    the   appointment 
of  guardians  by    the   court.     And  the  court  is  not 
authorized  by  the  act  of  assembly  of  30th  March, 
1821,  to  require  security  from  a  guardian  in  socage, 
as  from  guardians  appointed  by  the  court,  chosen  by 
the  minor,  or  created  by  testament:     And  from  the 
omission  of  the  legislature  to  enumerate  guardian  in 
socage,  when  providing  means  to  secure  the  estates 
of  minors,  it  may  be  reasonably  presumed  that  they 
did  not  consider  such  guardianship  as  longer  existing 
in  the  state.  We  have  already  observed,  that  neither 
guardianship  in  socage,  or  by  nurture,  stands  before 
the  authority  of  the  court,  under  the  act  of  1713. 
These  relations  are  important  only  in  regard  to  the 
acts  to  be  done  by  such  guardian,  before  a  statutory 
guardian  shall  be  appointed.     The  force  of  the  act  of 
1713,  was  fully  and  deliberately  considered  by  the 
Supreme  Court,  September  term,  1786,  on  an  appeal 
from  the  Orphan's  Court  of  Philadelphia   county. 
The  opinion  of  the  Court  was  delivered  by  M'Kean, 
chief  justice,  (a) 

"  The  intestate  had  left  seven  children  all  under 
the  age  of  fourteen  years:  Their  mother  married  the 
baron  appellant.  Upon  petition  to  the  Orphan's  Court 
by  the  children  for  the  appointment  of  guardians, 
Enoch  Edwards,  and  another  were  appointed.  This 
appeal  is  founded  upon  an  idea,  that  the  guardian  in 

^  (a)  Graham's  Appeal,  1  Dall.  37. 


OHAP,  i.]          OF  GUARDIAN  AND  WARD.  43! 

socage  or  by  nurture  must  be  appointed,  and  that  the 
Orphan's  Court  have  not  a  discretion. 

"  In  England,  the  next  of  kin  to  whom  the  inheri- 
tance cannot  descend,  must  be  appointed  guardian, 
the  mother  therefore  would  have  been  entitled  to  the 
appointment  there;  but  in  Pennsylvania,  it  depends 
on  the  7th  and  12th  sections  of  the  act  of  1/th  Anne 
c,  3.  And  we  all  agree  that  by  the  true  construction 
of  these  sections,  the  Orphan's  Court  have  power  to 
assign  the  guardianship  of  minors  under  the  age  of 
fourteen  years  to  whom  they  please,  according  to 
their  legal  discretion:  which  legal  discretion  by  sect. 
12,  is  confined  to  the  choice  of  persons  of  the  same 
religious  persuasion,  of  good  repute  and  approved  by 
the  orphan.  If  any  of  these  objections  should  occur, 
the  court  must  appoint  some  other  persons;  which 
could  not  be  the  case  if  they  were  confined  to  the 
guardian  in  socage  or  by  nurture." 

"'  The  opinion  of  the  court  is  conformable  to  the 
invariable  practice  of  every  county  in  the  state,  from 
the  date  of  the  act  to  this  day:  And  the  construction 
given  to  an  act  immediately  after  it  has  passed,  can- 
not be  altered  at  so  distant  a  period;  even  although 
it  might  have  been  a  little  erroneous  in  the  first  in- 
stance." 

IV.  Although  by  the  statute  of  wills,  real  estate 
was  made  alienable  so  early  as  1542,  32.  Hen.  8,  yet 
the  right  to  delegate  parental  authority  was  not  ad- 
mitted until  the  year  1 660. 

By  the  stat.  12th  Chas.  II.,  c.  24th,  the  8th  and  9th 
.sections  of  which  are  in  force  in  this  state,  (a)  it  is 

(a)  Rob,  Dig.  3 12. 


OF  GUARDIAN  AND  WARD.         [BOOK  vii 

provided,  "  That  where  any  one  having  a  child,  or 
children  under  the  age  of  twenty-one  years  at  the  time 
of  his  death,  it  shall  be  lawful  for  the  father  of  such 
child,  whether  born  at  the  time  of  the  decease  of  the 
father,  or  at  that  time  in  venire  sa  mere,  or  whether 
such  father  be  within  the  age  of  twenty -one  years, 
or  of  full  age,  by  deed  executed  in  his  life-time,  or 
by  his  last  will  and  testament  in  writing,  in  the  pre- 
sence of  two  or  more  credible  witnesses,  in  such 
manner,  and  from  time  to  time,  as  he  thinks  fit,  to 
dispose  of  the  custody  and  tuition  of  such  child,  or 
children,  for,  and  during  such  time  as  he  or  they 
shall  remain  under  the  age  of  twenty-one  years,  or 
any  lesser  time,  to  any  person  or  persons  in  posses- 
sion or  remainder,  other  than  popish  recusants;  and 
that  such  person  or  persons,  to  whom  the  custody  of 
such  child  or  children,  hath  been,  or  shall  be  so  dis- 
posed or  devised  as  aforesaid,  shall  and  may  maintain 
an  action  of  ravishment  of  ward  or  trespass  against 
any  person  or  persons,  which  shall  wrongfully  take 
away  or  detain  such  child  or  children,  and  shall,  and 
may  recover  damages,  for  the  use  and  benefit  of  such 
child  or  children." 

And  it  is  further  provided,  "  that  such  person  or 
persons,  to  whom  the  custody  of  such  child  or  chil- 
dren, hath  been,  or  shall  be  so  disposed  or  devised, 
shall,  and  may  take  into  his  or  their  custody,  to  the 
use  of  such  child  or  children,  the  profits  of  all  lands? 
tenements,  and  hereditaments  of  such  child  or  chil- 
dren, till  their  respective  age  of  one-and  twenty 
years,  or  any  lesser  time,  according  to  such  disposi-. 
tion  aforesaid:  and  may  bring  such  actions  in  relation 


.  i.]          OF  GUARDIAN  AND  WARD.  i,3;i 

thereto  as  in  law,  a  guardian  in  common  socage  might 
do. 

It  is  observable  that,  by  this  statute,  a  power  is 
granted  by  the  father,  which  he  himself  does  not  pos- 
sess. It  has  been  said  that  the  guardian  is  in  loco 
parentis.  This  is  true  in  all  cases  relating  to  the 
person  of  the  infant  under  the  age  of  fourteen  years; 
it  is  true  in  relation  to  the  heir,  in  guardianship  by 
nature,  until  the  age  of  twenty-one,  but  no  species 
of  guardianship  of  which  we  have  hitherto  treated, 
gives  power  over  the  estate  of  the  infant,  until  his 
maturity.  The  guardian  by  nature  has  charge  of  the 
person  of  the  heir  until  his  majority,  the  guardian 
by  nurture  until  the  age  of  fourteen:  But  by  this 
act,  the  father  who  is  not  the  guardian  of  the  estate 
of  the  child,  commits  that  estate  with  the  person  of 
the  infant  to  the  care  of  another;  and  not  only  the 
estate  which  may  come  by  the  father,  but  all  the  es- 
tate acquired  by  the  infant  during  his  minority,  be- 
fore or  after  the  death  of  the  father,  is  subjected  to 
the  testamentary  guardian,  until  the  infant  shall  at- 
tain the  age  of  twenty-one  years-,  and  an  anomaly  is 
produced  in  the  law  by  this  act;  for  an  infant  who 
cannot  directly  dispose  of  the  custody  of  his  real  es- 
tate by  will,  if  he  have  a  child,  can  by  the  appoint- 
ment of  a  guardian,  dispose  of  the  custody  of  his  real 
estate  also,  till  the  child  shall  attain  the  age  of  twen- 
ty-one years;  the  custody  of  the  estate  being  made 
incidental  to  the  guardianship. 

V.  Statutory  guardians  are  those  appointed  under 
the  authority  of  the  several  acts  of  assembly.  By 
the  act  of  March  27th,  1713,  sec.  8th,  authority 


434  OF  GUARDIAN  AND  WARD.  [BOOK  vi. 

is  given  to  the  Orphan's  Court,  "  to  admit  orphans 
or  minors,  when  or  as  often  as  there  may  be  occa- 
sion to  make  choice  of  guardians  or  tutors-,  and  to  ap- 
point guardians  or  next  friends,  or  tutors  over  such 
as  the  said  court  shall  judge  too  young,  or  incapable 
according  to  the  rules  of  the  common  law,  to  make 
choice  themselves." 

It  is  the  practice  in  all  cases  where  there  are  no 
testamentary  guardians,  to  apply  to  the  Orphan's 
Court,  to  appoint  a  guardian  for  the  estate  of  minors, 
[answering  to  the  curator  of  the  civil  law,]  even 
where  the  father  is  living,  and  if  the  father  be  dead, 
then  to  appoint  a  guardian  for  the  person  and  estate 
of  the  minor.  The  language  of  the  foregoing  act  does 
not  expressly  state  the  authority  of  the  guardian  thus 
appointed;  from  the  section,  we  have  copied  an  au- 
thority over  the  person  only  of  the  minor  is  implied. 
But  by  the  Itith  section  of  the  same  act,  it  is  declared 
that  the  discharge  given  by  the  guardian  for  any 
sums  of  money,  debts,  rents,  or  duties  belonging  to 
any  orphan  or  minor,  shall  be  binding  on  such  mi- 
nor when  he  attains  to  full  age;  and  shall  be  effectu- 
al in  law,  to  discharge  the  person  that  takes  the  same. 
Thus  shewing  clearly  that  the  legislature  viewed  the 
guardian,  as  possessing  the  power  given  by  the  com- 
mon law. 

It  would  seem  from  a  full  view  of  the  act  of  1713, 
to  have  been  the  intention  of  the  legislature,  to  invest 
the  '  rphan's  Court  with  the  general  superintendarice 
of  the  interest  of  minors.  Upon  this  principle,  this 
court  exercises  the  authority  of  a  court  of  chancery, 
and  will  dismiss  even  a  testamentary  guardian,  who 


SHAP.  i.]  OF  GUARDIAN  AND  WARB.  435 

is  unqualified,  or  abuses  his  trust,  and  appoint  such 
as  their  discretion  may  direct,  (a)  This  discretion  is 
limited  to  the  choice  of  persons  of  the  same  religious 
persuasion,  of  good  repute,  and  approved  by  the  or- 
phan. 

Another  species  of  statutory  guardian,  though  of  a 
more  limited  character,  is  that  appointed  by  the 
Court  of  Common  Pleas,  under  the  act  of  7th  April, 
1807,  in  case  of  partition  of  real  estate.  By  this  act, 
if  a  minor  be  defendant,  and  have  no  guardian  upon 
whom  the  writ  in  partition  may  be  served,  the  court 
may  appoint  one  who  is  merely  a  guardian  pendents 
lite. 

V.  Guardianship  ad  litem,  is  where  an  infant  is 
made  defendant,  who  has  no  guardian,  and  the  court 
before  whom  the  suit  is  appoints  one  pro  hac  vice. 
The  court  never  appoint  a  guardian,  ad  litem  to  an  in- 
fant plaintiff;  for  he  must  sue,  by  his  guardian  or  pro- 
chein  amy  In  a  criminal  case  no  guardian  is  appoint- 
ed ad  litem:  the  Court  is  guardian  for  the  accused 
infant,  (fc) 

fa)  2  Pr  Wms.  108.  4  Bro.  Ch.  rep.     (6)  Co.  Litt.  89.  note  16  or  13S. 
101.  1  Har.  Ch.  26.  7.  53, 


I3G  OP  GUARDIAN  AND  WARD.          [BOOK  vi. 

CHAPTER  II. 

APPOINTMENT  OF  GUARDIAN — WHO  MAY  BE — HIS  POW- 
ER—  WHEN  AND  HOW  HE  MAY  BE  CALLED  TO  AC- 
COUNT  REMEDIES  OF  THE  WARD. HOW  DISCHAR- 
GED. 

SECTION   I. 

Who  may  be  guardian. 

As  the  testamentary  and  statutory  guardians  have 
in  truth  taken  the  place  of  all  others,  we  will  consider 
them  at  large  and  first  inquire  who  may  be  such 
guardian.  From  the  baldness  of  the  statutes  we  are 
enforced  to  resort  for  information  to  the  learning  on 
guardianship  in  socage. 

Under  the  statute  of  Charles  II,  there  is  no  dis- 
qualification save  popish  recusancy,  which  is  not  an 
objection  here.  We  have  already  stated  the  disquali- 
fications under  the  act  of  1713.  So  that  it  would  seem 
under  the  former  act,  that  the  selection  of  the  guar- 
dian is  left  to  the  parent  without  limitation,  and  under 
the  latter,  to  the  Court,  subject  to  the  foregoing  re- 
strictions; one  of  which  is,  that  the  guardian  be  not 
appointed  against  the  minor's  own  mind  or  inclination, 
so  far  as  he  has  discretion  and  capacity  to  express  or 
signify  the  same.  The  minor  is  supposed  at  fourteen 
years  of  age  to  be  endowed  with  this  discretion  or 
capacity  and  for  infants  of  this  age,  guardians  are  al- 
ways appointed,  on  their  nomination,  the  court  refusing 
its  sanction,  only,  when  such  persons  are  excep- 
tionable. 

The  Court  uniformly  refuse  to  appoint  as  guardian 
the  executor  or  administrator  of  the  estate,  in  which 


«HAP.  ii.]          OF  GUARDIAN  AND  WARD.  437 

the  minor  is  interested.  Because,  by  such  appoint- 
ment the  minor  would  be  entirely  at  the  mercy  of  the 
executor  or  administrator.  But  where  the  adminis- 
trator has  made  a  final  settlement  of  his  accounts,  the 
interest  of  the  ward  being  ascertained  and  recorded, 
the  character  of  administrator  is  no  longer  an  objec- 
tion, and  the  court  will  appoint  him.  (a) 

SECTION    II. 

How  appointed, 

The  appointment  of  a  guardian  under  the  statute  of 
Charles  II,  is  by  will  or  deed  executed  in  the  pre- 
sence of  two  or  more  credible  witnesses:  Under  the 
act  of  1713  application  is  made  to  the  Orphan's  Court 
by  petition.  In  the  first  judicial  district  such  applica- 
tion should  ordinarily  be  made  at  the  stated  sessions 
of  the  court,  but  where  a  case  is  urgent,  the  court, 
whenever  there  are  two  judges  on  the  bench,  will  re- 
ceive a  petition  and  appoint  a  guardian. 

The  petition,  when  the  minor  is  under  the  age  of 
fourteen  years,  is  signed  by  the  mother  or  other  friend; 
and  should  state  the  name  of  the  father  and  the  place 
of  his  residence,  at  the  time  of  his  death,  if  he  be 
dead;  that  the  minor  is  under  the  age  of  fourteen 
years  and  has  no  person  legally  authorized  to  take 
charge  of  his  person  or  his  estate,  as  the  case  may  be, 
and  conclude  with  a  prayer  to  the  court,  to  appoint 
some  suitable  person  for  that  purpose.  (6) 

If  the  minor  be  above  fourteen,  he  is  generally  him- 
self the  petitioner,  and  his  prayer  is,  that  the  court 

(a)     Deborah    Stewart's     case     1     (6)  Appendix,  no.  45, 46. 
Browne  Rep.  288. 


438  OF  GUARDIAN  AT?D  WARD.          [BOOK  vi. 

will  admit  him  to  make  choice  of  a  suitable  person  as 
guardian.  And  where  there  are  minor  children  of 
the  same  parent,  above  and  under  the  age  of  fourteen 
years,  their  prayers  may  be  incorporated  in  one  pe- 
tition (a)  The  court  in  all  cases  require  the  perso- 
nal appearance  of  the  minor,  above  the  age  of  four- 
teen years,  that  he  may  make  his  choice  viva  voce: 
And  although  it  sometimes  dispenses  with  the"  pre- 
sence of  minors  under  that  age  it  is  most  usual  to  re- 
quire their  appearance. 

Where  tender  age  or  other  circumstances  require 
it,  the  court  will  commit  the  person  of  a  minor  to  one, 
and  the  estate  to  another  guardian-,  or  it  will  appoint: 
a  guardian  or  tutor  for  the  person-,  and  a  curator  for 
the  estate. 

Where  a  minor  above  the  age  of  fourteen  years 
residing  in  one  county  has  estate  in  another,  on  ap- 
plication to  the  court  of  the  county  where  the  estate 
lies,  to  be  admitted  to  choose  a  guardian,  such  court 
will  grant  a  dedimus  potestatcm,  to  some  discreet  per- 
son in  the  county,  where  the  minor  resides,  authoris- 
»/ ' 

ing  him  to  call  before  him  the  minor  to  make  his 
choice,  which  being  certified  to  the  court  by  the 
commissioner  will  be  confirmed,  (b) 

But  whatever  may  be  the  power  of  the  court  to 
appoint  a  guardian,  or  curator  of  an  estate,  lying  with- 
in its  jurisdiction,  its  power  to  appoint  a  tutor  or  guar- 
dian, of  the  person  of  the  minor,  residing  out  of  its 
jurisdiction,  may  be  fairly  questioned-  If  the  pos- 
session of  estates  in  several  counties  by  the  minor, 
gives  the  court  of  each  county  a  right  to  appoint  a 

(a)  Appeodix,  no.  48 .  (6)  Pollard's  case,  1  Browne  310, 


«HAP.  iif]         OP  GUARDIAN  AND  WARD.  439 

guardian,  the  minor  may  have  not  only  several  guar- 
dians of  his  person,  but  several  guardians  of  his  estates 
collectively.  For  if  thecourt  of  each  county  have  power 
over  its  person,  when  out  of  its  jurisdiction,  it  may  with 
equal  propriety  exercise  like  power,  over  property 
thus  situated.  The  better  opinion  therefore  would 
seem  to  be,  that  the  guardian  should  be  selected 
under  the  direction  of  the  Orphan's  Court,  of  the 
county  in  which  the  minor  resides,  and  should  be 
appointed  by  such  court,  guardian  of  the  person  and 
estate,  wherever  the  estate  may  lie.  Thus  making 
the  guardianship  of  the  estate  follow  that  of  the  per- 
son, as  in  the  case  of  the  testamentary  guardian:  Or 
if  this  be  sometimes  inexpedient,  then  to  appoint  a 
guardian  of  the  estate  only,  lying  in  the  county  where 
the  court  has  jurisdiction. 

SECTION  III. 

Of  the  powers,  duties,  and  liabilities  of  Guardians. 

The  powers,  duties,  and  liabilities  of  guardians, 
may  be  considered,  first,  as  to  the  person,  and  second- 
ly, as  to  the  property  of  the  ward. 

The  guardian  of  the  person  is  in  loco  parentis.  He 
is  bound  to  take  such  care  of  the  person  of  the  ward, 
as  a  careful  and  diligent  father  would  of  his  child 
and  to  educate  him  according  to  his  rank  and  estate, 
(a)  If  it  be  necessary  to  put  the  minor  apprentice; 
the  assent  of  the  guardian  must  be  had:  but  this 
is  only  requisite  and  effectual,  when  the  minor  has 
no  parent  liring.  (6)  For  by  the  act  <  i  assembly 

(a)  1  Bl.  Com-  462.  (6)  I  Sm.  L.  303. 


OF  GUARDIAN  AND  WARD.          [BOOK  vt. 

28th  September,  1770,  the  consent  of  the  parent  is 
requisite,  and  cannot  be  supplied  by  that  of  the  guar- 
dian unless,  perhaps,  when  given  under  the  direction 
of  the  Orphan  s  Court:  That  court  being  empowered 
on  the  application  of  executors,  administrators,  or 
guardians,  to  order  and  direct  the  binding,  or  putting 
out  of  minors,  apprentices  to  trades,  husbandry,  or 
other  employments,  as  shall  be  thought  fit.  A  guar- 
dian cannot  bind  out  his  ward  as  a  servant  A  habeas 
corpus  was  issued,  to  bring  up  the  body  of  Benjamin 
a  minor,  about  fourteen  years  old,  who  had  been 
bound  by  his  guardian's  consent,  to  the  defendant  to 
serve  her  till  he  should  arrive  to  the  age  of  fifteen. 
Having  absconded  from  her  service  he  was  commit- 
ted to  jail  for  that  cause;  and  a  general  question  was 
made,  whether  an  infant  could  be  bound  as  a  servant 
in  Pennsylvania?  The  court  was  unanimously  of 
opinion,  that  the  indenture  in  this  case  was  void,  (a) 
The  governing  principle  of  the  guardian's  trust  is, 
that  all  his  acts  must  be  for  the  benefit  of  the  ward. 
(b)  Subject  to  this  principle,  when  guardian  of  the 
estate,  he  may  dispose  of  the  personal  estate  of  the 
minor  at  pleasure,  but  he  will  be  accountable  for  the 
profits  actually  made,  or  which  might  have  been 
made,  by  discreet  employment  funds  of  the  ward. 
Thus  if  a  guardian  be  guilty  of  neglect  in  not  putting 
out  money,  or  if  he  use  it  himself,  he  shall  be  charged 
with  interest,  (c)  And  a  reasonable  rule  is,  leaving 

(a)  Pespublica  v.  Kcpple,  2  Dall.  (c)   Fox    v.    Wiloox,   1   Bin.   194. 

197.  Say's  Ex.  v.   Barnp-s.  4  Ser^f.  fy 

(6)  Harr.  Ch.  509.  t  Atk.  480.  Har-  R.  119.  Baker's  App.  8  Sergt.  & 

grave  Co.  Litt.  89,  No.  13.  Vaugh,  R.  12. 

186. 


»HAP.  ii.]         OF  GUARDIAN  AND  WARD.  441 

a  sufficient  sum  in  the  hands  of  the  guardian  for  cur- 
rent expenses,  to  strike  a  balance  of  money  in  hand, 
every  six  months  allowing  simple  interest  upon  it.  (a) 
But  if  the  guardian  place  his  ward's  money  at 
interest,  and  the  security  fail,  he  will  be  responsible 
for  the  loss,  unless  he  have  the  sanction  of  the  Oi- 
phan  s  Court  for  the  investment.  It  being  provid- 
ed by  act  of  assembly,  (b)  "•  that  guardians  or  trus- 
tees may  by  leave,  and  direction  of  the  Orphan's 
Court,  put  their  minor  s  money  to  interest,  upon  such 
security  as  the  said  court  shall  allow  of:  And  if  such 
security  taken  bona  fide  and  without  fraud,  shall  hap- 
pen to  prove  insufficient,  it  shall  be  the  minor's  loss. 
But  if  no  person  who  may  be  willing  to  take  the  said 
money  at  interest,  (with  such  security)  can  be  found 
by  the  person,  so  as  aforesaid  concerned  for  the 
minors,  nor  by  any  others,  then  the  said  guardian  or 
trustees,  shall  in  such  cases  be  responsible  for  the 
principal  money  only,  until  it  can  be  put  out  to  in- 
terest as  aforesaid."  And  by  section  5th  of  the  same 
act,  it  is  further  provided  that  the  day  of  payment, 
of  the  money  so  to  be  put  out  to  interest,  at  any  one 
time,  shall  not  exceed  twelve  months,  from  the-  date 
of  the  obligation,  or  other  security  given  for  the  same, 
and  so  toties  quolies,  when  and  so  often  as  the  said 
money  shall  be  paid  in,  or  come  to  the  hands  of  the 
said  guardians  or  trustees,  (c)  And  by  sec.  6th,  no 
executor,  administrator,  or  guardian,  shall  be  liable  to 
pay  interest,  but  for  the  surplus  age  of  the  decedent's 
estate  remaining  in  their  hands  or  power,  and  belong- 

,'a)   Fox  v    Wilcox   1    Binn.    194.  ( d]  \  Sm.  L.  83. 

Say's  exs.  v.  Barnes,  4  Serg.  &.  H.  (c)  Ibid. 

1 14.  Baker's  App.  8  Scr.  &  R.  1 2. 


442  OF  GUARDIAN  AND  WARD.          [BOOK  vr' 

inffto  the  minors  when  the  accounts  of  their  adminis- 
tration are,  or  ou^ht  to  be  settled  and  adjusted  before 
the  Orphan's  Court,  (a) 

The  last  recited  section,  so  far  as  it  regards  exe- 
cutors and  administrators,  is  clear  and  explicit,  the 
latter  being  compelled  to  account  by  statute,  at  the 
expiration  of  twelve  months  from  their  appointment, 
and  the  former  within  the  same  term  by  the  ecclesias- 
tical law.  There  is  no  law  prescribing  the  time  at 
which  the  guardian  shall  settle  his  accounts,  with 
a  view  to  this  point  The  termination  of  his  trust 
is  certainly  a  proper  period  for  the  settlement  of  the 
accounts:  but  this  trust  is  not  terminated  of  course, 
but  by  the  arrival  of  the  minor  at  his  majority,  and 
the  guardian  may  have  in  his  hands  large  sums  of 
money,  producing  no  interest  to  his  ward  for  years 
together.  This  is  certainly  contrary  to  the  intention 
of  the  act,  which  implicitly  d<  clares  the  liability  of 
the  guardian  for  interest,  if  he  have  power  to  put  the 
money  to  use  and  do  not. 

This  apparent  discrepancy  may  be  reconciled,  by 
considering  the  time  at  which  the  guardian's  accounts 
ought  to  be  settled  and  adjusted  as  annual,  according 
to  the  practice  of  many  guardians,  who  have  charge  of 
large  estates.  Time  will  thus  be  given  to  the  guar- 
dian to  collect  from  the  estates  sufficient  sums  to  loan, 
and  to  search  for  safe  securities.  And  this  practice 
is  analogous  to  that  of  the  guardian  appointed  by  the 
Court  of  Chancery.  (6)  And  our  Supreme  Court  has 
declared,  ttiat  to  be  a  reasonable  period  for  the  settle- 
ment of  these  accounts,  and  that  guardians  are  liable 

(a)  Act  1713,  1  t-m.  L. 

(&)  1  Sid.  424.  I  P,  Wms.  703.     Jac.  Law  Die.  216.  3  Salt.  177. 


:;HAP.II.J          OF  GUARDIAN  AND  WARD. 

only  to  pay  interest  after  twelve  months  from  the 
death  of  the  intestate;  and  we  may  perhaps  be  per- 
mitted to  add,  or  from  the  time  of  their  appoint- 
ment, (a) 

The  act  of  28th  March,  18:21,  (6)  however,  has 
provided,  that  every  guardian  shall,  at  least  once  in 
three  years,  and  whenever  required  by  the  Orphan's 
Court,  render  an  account  of  the  management  of  the 
property  and  estate  of  the  minor  under  his  care. 

When  personal  property  of  the  ward  comes  into 
the  hands  of  a  guardian  which  is  not  money  on  inter- 
est, it  is  a  general  rule,  that  the  guardian  ought  to 
sell  it,  and  put  it  at  interest;  or  if  there  are  debts 
which  the  ward  must  pay,  he  ought  to  apply,  it  to 
the  payment  of  debts;  for  such  property  produces 
no  interest,  whilst  the  debt  of  the  ward  is  increa- 
sing, by  reason  of  the  accumulating  interest.  This 
will  not  apply  to  every  species  of  property.  It  is  not. 
usual  to  sell  family  pictures,  plate,  watches,  orna- 
ments, &c.  but  to  keep  them,  (as  they  are  not  of  a 
perishable  nature)  in  remembrance  of  their  former 
possessors:  nor  would  it  be  improper  in  other  cases, 
to  preserve  other  property,  as  where  a  ward  is 
nearly  of  age,  and  soon  to  enter  on  a  farm  well- 
stocked,  which  is  his  property;  the  guardian  would 
be  justified  in  not  selling  this  stock,  (c)  The  guardian 
may  pay  off  the  interest  of  any  real  incumbrance, 
the  principal  of  a  mortgage,  for  that,  it  is  said,  is 
a  direct  and  immediate  charge  upon  the  land,  (d) 
And  for  the  same  reason,  it  is  presumed,  where  lands 

(a)Foxv.  Wilcox,  1  Binn.  194.  Kel.  326. 

ti)  7  H.  L.  433.  (d)  Free.  Cli.  37. 

fc)  Vern.  403,  535  Reeve's  Dora. 


444  OF  GUARDIAN  AND  WARD.  [BOOK  vi. 

have  descended  to  the  ward,  charged  as  all  lands  are 
here,  with  the  debts  of  the  decedent,  he  may  pay 
such  debts. 

He  cannot  apply  his  ward's  personal  estate,  nor  the 
rents  and  profits  of  the  real  estate  to  the  purchase  of 
lands,  because  he  would  thereby  divert  them  from 
the  course  of  administration,  (a)  and  because  such 
investment  seems  forbidden  by  the  legislature,  when 
directing  the  guardian  to  loan  the  monies  of  his  ward 
at  interest  on  securities. 

The  guardian  is  entitled  to  receive  the  rents  and 
profits  of  the  real  estate  of  his  ward.  (6)  He  must 
keep  such  estate  in  repair.  He  may  make  leases  for 
years  in  his  own  name,  which  will  be  valid  and  ef- 
fectual during  the  minority  of  the  ward,  (c)  But  on 
attaining  his  majority,  the  minor  may  avoid  such  lea- 
ses, (d)  It  is  said,  if  the  guardian  take  bond  for  the 
rent,  he  thereby  makes  it  his  own  debt,  and  shall  be 
charged  with  it.  But  he  shall  be  allowed  all  reasona- 
ble expenses  in  the  discharge  of  his  trust,  and  if  he 
be  robbed  without  his  default  or  negligence,  he  shall 
not  be  charged  with  the  loss,  (e) 

Where  there  are  several  wards,  the  guardian 
should  keep  a  separate  account  with  each,  and  he  is 
not  justified  in  suffering  property,  which  ought  to  be 
distributed  equally  among  them,  to  go  into  the  hands 
of  any  one  of  them  (/) 

The  guardian  can  sell  the  real  estate  of  his  ward, 
by  order  of  the  Orphan's  Court,  where  the  personal 
estate  is  inadequate  to  his  maintenance  and  educa- 

(o)  Free.  Ch.  137,  2  Vern  608.  1  (d)  I  Bar.  Ch.  515.  2  Ch.  Rep.  97. 

Vern.  403.  435  2  Vern  480.  1  Inst.  89. 

(6)  Harp.  Co  Lit.  89.  Salk.  177.  (e)  Ibid, 

(c)  Jb.  88,  89.  Litt.  sec.  123,  t24,  (/)  Baker's  Appeal,  8  S.  &  R.  '12. 


CHAP.  «.]  OF  GUARDIAN  AND  WAPTD.  445 

tion.  This  power  is  given  by  act  of  7th  April, 
1807,  which  provides,  that  "  where  it  shall  be  made 
to  appear  to  the  Orphan's  Court,  that  a  minor  child 
or  children  is,  or  are  possessed  of  real  estate,  but  is  or 
are  not  possessed  of  personal  estate,  adequate  to  the 
maintenance  and  education  of  such  minor  child  or 
children,  then,  and  in  every  such  case,  the  Orphan's 
Court  of  the  county  where  the  real  estate  lies,  shall 
allow  the  guardian  or  guardians  of  such  child  or 
children,  to  make  public  sale  thereof,  or  of  so  much 
of  the  said  real  estate  as  on  the  best  computation  that 
they  can  make  of  the  value  thereof,  as  the  said  Court 
shall  judge  necessary  for  the  purposes  aforesaid,  and 
to  make  a  title  thereto  to  the  purchaser:  provided, 
that  the  guardian  or  guardians,  shall,  before  he  or  they 
proceed  to  convey,  give  bond,  with  sufficient  security, 
to  the  Orphan's  Court,  to  dispose  of  the  proceeds  of 
the  sale,  for  the  use  of  the  said  minor  or  minors,  and 
to  invest,  within  six  months  from  the  receipt  of  the 
same,  so  much  thereof,  if  any  there  be,  as  shall  not 
be  immediately  required,  in  good  real,  or  other  se- 
.curities."  (a) 

The  practice  under  this  statute  is  by  petition  of  the 
guardian  to  the  Orphan's  Court,  setting  forth  that  his 
ward  has  not  personal  estate  adequate  to  his  mainte- 
nance and  education;  that  he  has  certain  real  estate, 
describing  that  particularly  which  it  is  intended  to 
sell,  and  praying  the  court  to  order  the  same  to  be 
sold.  (6)  Upon  this  petition  the  court  appoint  audi- 
tors or  commissioners,  usually  three,  selected  for  their 
good  character,  knowledge  of  business  and  accounts? 

(a)  4  Sm.  L»  40K  (6)  Appendix,  no.  49. 


446  OF  GUARDIAN  AND  WARD.  [BOOKVI. 

whose  duty  it  is  to  investigate  the  accounts  of  the 
persona]  estate,  presented  by  the  guardian,  so  far  at 
least  as  is  necessary  to  ascertain  that  it  is  inadequate 
to  the  maintenance  and  education  of  the  minor:  If 
the  minor  have  several  real  estates,  to  select  that, 
which  under  all  circumstances  it  is  most  convenient 
to  sell:  If  he  have  but  one  real  estate  to  consider 
whether  the  whole  or  pan  should  be  sold,  if  a  part, 
what  part,  and  to  make  a  report  of  their  views  to  the 
court.  The  guardian's  account  of  his  disposition  of  the 
personal  fund  should  be  presented  with  the  petition, 
or  exhibited  by  him  to  the  commissioners,  who  will 
make  it  part  of  their  report.  If  the  report  of  the  com- 
missioners be  favourable  to  the  prayer  of  the  petition, 
the  order  will  be  made  accordingly,  unless  cause  be 
shown  to  the  contrary. 

The  manner  in  which  the  sale  is  to  be  effected  is  not 
prescribed  by  the  act,  but  by  the  rule  of  court,  it  is  to 
be  made  as  other  sales  under  its  authority.  The  guar- 
dian procures  an  order  of  sale  from  the  clerk,  direc- 
ting the  time  and  place  of  sale  as  fixed  by  the  court, 
and  after  sale  made,  he  endorses  thereon  his  return, 
and  offers  for  the  approbation  of  the  court,  a  bond 
with  surety  pursuant  to  the  act.  The  bond  is  usually 
given  in  double  the  value  of  the  property  sold,  (a) 

The  guardian  is  liable  for  voluntary  and  permis- 
sive waste,  but  not  for  casual  or  accidental  injury 
done  to  the  property  under  his  care.  (6) 

He  is  entitled  to  a  compensation  for  his  services,  which 
varies  with  the  extent  of  the  estate,  and  the  trouble 
and  care  of  the  guardian,  from  2  1-2  to  10  per  cent. 

(a)  Appendix,  no.  53.  (6)  Co.  Litt.  87.  Litt  s.  123. 


CHAP,  n.]  OF  GUARDIAN  AND  WARD.    .  447 

seldom,  if  ever,  exceeding  that  ratio.  And  his  com- 
missions may  be  charged  in  the  account  from  time 
to  time,  as  they  are  earned,  (a)  But  he  is  not  enti- 
tled to  commissions  on  sums  charged  against  him  as 
in: crest.  (6) 

A  guardian  of  a  minor  child  of  an  intestate  may 
accept  for  his  ward  a  purpart  of  the  real  estate  of  the 
intestate;  and  if  he  enter  into  recognizances  for  the 
payment  of  the  appraised  value  of  the  shares  of  the 
other  children,  in  the  manner  prescribed  by  the  intes- 
tate laws,  the  ward  is  bound  by  the  act  of  the  guar- 
dian and  cannot,  on  arriving  at  full  age,  disaffirm  it.  (c) 

SECTION  IV. 

Of  the  remedies  of  the  ivard  against  the  guardian. 

The  remedies  of  the  ward  against  the  guardian  are 
either  preventive  or  reparative. 

Preventive  remedies  are  those  by  which  the  guar- 
dian is  compelled  to  give  security  for  the  faithful  ad- 
ministration of  his  trust,  or  on  his  refusal  or  neglect 
so  to  do,  is  removed  from  his  office. 

.  The  guardian  is  not  always  required  to  give  secu 
rity,  when  appointed  by  the  court,  yet  of  late  it  is 
exacted  in  a  majority  of  cases.  And  under  the  act 
30th  March,  1821,  (d)  the  Orphan's  Courts  may,  when- 
ever they  deem  it  proper,  require  bond,  with  good 
and  sufficient  surety,  from  every  guardian  of  a  minor 
child,  whether  appointed  by  the  court,  chosen  by  the 
minor,  or  created  by  the  last  will  or  testament  of  a  de- 

•»  Say's  Exrs.  v.  Barnes -1  S.  &  R.     (c}   Case  of  Gclbach's   A^T'     ' 

116.  S.  &R. 

ify  Ibid.  'd    7  Sm.  L.  43'.'.. 


448  OF  GFA^DIAN  AND  WARB.  [BOOK  vi. 

ceased  testator,  in  trust  for  all  persons  interested; 
which  bonds  shall  be  taken  in  the  name  of  the  com- 
monwealth, and  filed  in  the  Orphan's  Court,  condi- 
tioned that  the  guardian  shall  at  least  once  in  every 
three  years  and  whenever  required  by  the  court,  ren- 
der a  just  and  true  account  to  the  Orphan's  Court  of 
the  management  of  the  property  and  estate  of  the 
said  minor  under  his  care,  and  shall  also  deliver  up 
the  said  property  agreeably  to  the  decree  or  order 
of  the  said  court,  or  the  direction  of  law,  and  shall  in 
all  respects  faithfully  perform  the  duties  of  guardian. 
And  the  executor,  administrator,  former  guardian 
or  trustee  is  forbidden  to  pay  or  deliver  to  such 
guardian  so  chosen  or  appointed,  the  estate  of  such 
orphan  or  minor  until  such  guardian  shall  have  ac- 
cepted the  appointment,  and  if  required  by  the  Or- 
phan's Court  have  given  security  as  aforesaid  for  the 
faithful  performance  of  the  trusts  reposed  in  him.  And 

by 

Sec  2.  If  the  surety  in  any  guardian  bond  or  his 
representatives  shall  conceive  themselves  in  danger 
of  being  injured  by  reason  of  such  surety  he  may  pe- 
tition the  court  for  relief,  who  may  order  such  guar- 
dian to  give  sufficient  other  or  counter  securities  as 
they  may  judge  necessary  or  proper;  and  when 
such  order  is  complied  with,  the  court  may  discharge 
the  petitioning  surety,  from  all  liabilities  on  his  bond. 
But  if  such  guardian  be  unable,  or  refuse  to  give  such 
further  security,  for  the  space  of  thirty  days,  after  due 
notice  of  such  order,  the  court  may  direct  the  estate 
of  the  ward,  to  be  delivered  into  the  hands  of  the  pe 
titioner  or  other  persons,  and  make  such  other  order 


CHAP,  ii.]  OF  GUARPIAN  AND  AVARD.  .  449 

therein,  for  the  relief  of  the  petitioner  and  the  better 
securing  the  orphan's  estate,  as  to  them  shall  appear 
just  and  reasonable. 

And  by  sec.  3d.  the  respective  Orphan's  Courts 
have  power  to  remove  any  guardian  on  good  cause 
shown,  and  to  order  him  to  deliver  up  to  his  succes- 
sor, the  estate  of  the  minor,  and  to  make  such  other 
order  touching  the  premises,  as  the  interests  of  the 
minor  may  require. 

This  statute  is  confirmatory  of  the  practice  which 
prevailed  in  the  Orphan's  Court  of  the  city  and  coun- 
ty of  Philadelphia,  anterior  to  its  passage,  in  relation 
to  the  security  given  by  guardians.  When  the  minor 
or  his  friends  have  reason  to  believe  that  the  suar- 

O 

dian  is  negligent,  wasteful,  or  dishonest,  an  applica- 
tion may  be  made,  by  petition  to  the  court,  stating 
the  facts,  and  praying  a  citation  to  the  guardian,  com- 
manding him  to  appear  on  a  day  given,  and  shew 
cause  why  he  should  not  give  surety  for  his  faithful 
administration  of  his  trust.  On  the  return  of  the  ci- 
tation, the  complainant  and  guardian  are  heard,  and 
the  court  directs  the  guardian  to  give  security,  or  dis- 
misses the  petition.  If  the  guardian  do  not  comply 
with  the  order  of  the  court  he  will  be  removed.  But 
due  notice  of  the  order  of  the  court  must  be  first 
served  upon  him.  This  notice  is  served,  by  procuring 
a  copy  of  the  order  of  the  court,  under  the  seal  there- 
of, and  serving  it  upon  the  guardian,  thirty  days  be- 
fore application  be  made  for  his  removal. 

An  additional  preventive  of  the  abuse  of  the  guar- 
dian's trust,  is  found  in  the  power  of  the  court  to 
compel  him  to  render  an  account  of  his  administm- 

BJ. 


450  OF  GUARDIAN  A~*D  WARD.  [BOOKVI. 

tion.  He  may  be  compelled  to  account  at  any  time 
during  his  guardianship,  as  well  as  at  its  close,  (a) 
And  it  is  his  duty,  made  such  by  statute,  to  render  an 
account  triennially,  whether  he  be  commanded  by  the 
court  or  not.  And  his  failure  so  to  account  would  be 
sufficient  cause  for  an  application  for  his  removal. 

When  the  accounts  are  filed,  if  they  are  satisfac- 
tory, they  will  be  confirmed  by  the  court  on  motion, 
due  notice  being  given  to  all  parties  interested  of 
the  intended  application  to  the  court,  for  confirma- 
tion and  allowance.  For  guardians'  accounts,  unlike 
those  of  executors  and  administrators,  are  not  con- 
firmed of  course  on  presentation,  no  public  notice 
being  given  of  the  time  at  which  they  are  to  be  sub- 
mitted to  the  court,  except  when  they  are  settled 
with  the  register. 

If  the  accounts  are  to  be  further  investigated,  the 
court,  upon  petition,  will  send  them  to  auditors,  as 
they  do  the  accounts  of  executors  and  administrators. 
The  report  of  the  auditors  is  confirmed  nisi,  to  which 
exceptions  may  be  filed  within  one  month  after  such 
confirmation,  and  the  exceptions  must  be  supported 
by  affidavit  of  their  truth.  From  the  final  judgment 
of  the  court  an  appeal  lies  to  the  Supreme  Court,  if 
such  appeal  be  entered  within  one  year  after  the  said 
confirmation.  (6) 

The  reparative  remedies  of  the  ward,  are  by  ac- 
tion of  account  in  the  common  law  courts,  debt,  or 
assumpsit,  in  such  courts,  upon  an  account  settled  in 
the  Orphan's  Court,  or  for  monies  had  and  received 
by  the  guardian  to  the  use  of  the  ward.  I  do  not  find 

(a)  Co.  Litt.  87.  7  L.  P.  433.  (6)  Act  8th  Feb.  1819,  7  L.  P.  151. 


.]  OF  GUARDIAN  AND  WARD.  45! 

any  where,  that  the  Orphan's  Court  has  power  ex- 
pressly given  to  compel  the  guardian  to  pay  to  his 
ward  when  of  age,  the  balance  which  may  be  due  him, 
as  they  may  do  in  cases  of  executors  and  administra- 
tors, (a)  But  no  action  in  the  common  law  courts  will 
lie  against  the.  guardian  during  the  continuance  of  his 
trust.  (6)  When  the  ward  has  attained  his  majority,  he 
may  maintain  such  action,  or  it  may  be  brought  against 
a  guardian  who  has  resigned  his  trust,  or  has  been 
removed.  And  where  a  guardian  has  been  removed, 
he  may  be  compelled  by  the  Orphan's  Court,  to  pay 
over  to  his  successor,  all  his  ward's  estate,  (c) 

SECTION  v. 
Of  the  termination  of  the  ivardship. 

The  relation  of  guardian  and  ward  may  be  deter- 
mined, either  by  the  act  of  the  ward,  or  that  of  the 
guardian,  by  the  expiration  of  the  term  for  which  it 
was  created,  or  by  the  act  of  the  court. 

The  marriage  of  a  ward,  if  a  female,  must  termi- 
nate the  power  of  the  guardian,  both  as  it  respects 
her  person  and  estate.  Her  husband  has  an  unques- 
tionable right  to  her  person,  and  if  he  be  himself  of 
age,  to  the  control  of  her  property  also,  (d)  If  the 
husband  be  a  minor,  it  seems  that  his  guardian's  pow- 
er over  his  person  ceases,  he  having^B'tered  into  a 
relation  inconsistent  with  a  guardianship  of  his  per- 
son, (e)  As  to  his  estate,  marriage  does  not  change 
his  situation.  His  guardian  retains  his  power  ovep 
his  estate,  and  as  the  property  of  the  wife  passes  to 

(a)  Richard's  case  6  S.  &  R.  462.  (d)  Hac.  ab.  tit.  Guardian  E.  2  Inst. 

(ft.  Co.   Lilt.  87,  79.  260. 

(c)  Act  30t!i  March,  1321.  sec.  3.       (e)  Reeve's  Dom.  Relations,  20. 


452  OF  GUARDIAN  AND  WARD.  [BOOK  vr. 

the  husband,  his  guardian's  power  extends  to  that 
also,  (a) 

The  power  of  the  testamentary  guardian  endures 
for  the  time  limited  in  the  will,  not  exceeding  the  mi- 
nority of  the  infant. 

If  the  court  appoints  a  guardian  to  an  infant  under 
the  age  of  fourteen,  when  he  attains  to  that  age,  or 
at  any  time  afterwards,  he  may,  with  the  approbation 
of  the  Orphan's  Court,  choose  another  guardian;  but 
if  he  make  no  such  choice,  the  guardian  first  appoint- 
ed continues  till  the  ward  arrives  to  the  age  of  twen- 
ty one  years.  (6.) 

A  guardian  chosen  by  the  minor,  when  above  the 
age  of  fourteen  years,  continues,  unless  he  resign  his 
trust  or  be  removed,  until  his  ward  attain  to  the  age 
of  legal  maturity. 

The  guardian  may  at  any  time,  with  leave  of  the 
Orphan's  Court  make  a  settlement  of  his  accounts  so 
far  as  he  may  have  administered  the  estate  of  his  ward, 
and  be  dismissed  from  the  duties  of  his  appointment, 
provided,  that  he  surrender  the  residue  of  the  estate 
under  his  care  to  such  persons  as  the  court  may  ap- 
point, from  whom  the  court  may  require  bond  with 
surety,  (c) 

What  settlement  of  the  guardian's  accounts  shall 
entitle  him  tj^e  discharged,  has  no  where  been  de- 
termined. The  notice  to  be  given  of  the  filing  of  the 
accounts  of  the  executor,  administrator,  or  guardian, 
with  the  register,  is  prescribed  by  act  of  assembly, 
but  there  is  no  provision  requiring  the  guardian  so  to 

(a)  Reeve's  Dom.  Relations,  320.   (b)  Act  30th  March,  182.  7  S.  L.  433. 
(t)  Reeve,  321. 


OHAP.  ii. J  OP  GUARDIAN  AND  WARD.  453 

file  his  accounts  with  the  register-,  and  they  are  fre- 
quently filed  in  the  first  instance,  in  the  Orphan's 
Court.  If  his  accounts  be  settled  without  notice  to 
those  concerned,  their  investigation  may  be  deferred 
until  it  will  avail  little  to  detect  the  error  or  fraud 
committed.  To  prevent  this,  the  court  will,  on  the 
application  of  a  guardian  to  be  dismissed,  appoint,  on 
the  nomination  of  the  ward,  or  on  their  own  motion, 
some  person  as  guardian,  or  prochein  amy,  pro  hac 
vice,  to  investigate  his  accounts  before  auditors. 

All  contracts  and  agreements  made  between  the 
guardian  and  ward  soon  after  he  comes  of  age,  and 
especially  before  the  ward  is  in  possession  of  his  es- 
tate, are  viewed  by  the  courts  with  a  watchful  and 
even  jealous  eye:  and  they  will  be  dissolved,  unless 
they  will  stand  the  most  rigid  scrutiny  of  justice,  (a) 

Thus,  where  a  ward,  wh.o  was  about  to  remove  to 
another  climate  for  the  recovery  of  his  health,  had 
a  settlement  with  his  guardian  shortly  after  his  arri- 
val at  full  age,  and  gave  him  a  receipt  in  full,  with- 
out which  the  guardian  refused  to  deliver  up  the 
papers  belonging  to  the  estate,  it  was  held,  that  the 
receipt  was  not  a  bar  to  a  new  settlement  of  the  ac- 
counts hi  the  Orphan's  Court,  although  there  was  no 
fraud  or  circumvention,  but  a  mistake  of  the  principle 
on  which  the  interest  should  have  been  raised.  (&) 

(a)  Elliot  y.  Elliott,  5  Binn.  8    Say  (b)  Ibid, 

exr.  v.Barnes,  4  S.£  K.I  14. 


454  ADDENDA. 

The  author  is  indebted  for  the  following  note  upon  the  remedy  which  & 
creditor,  legatee,  or  distributee  of  a  decedent's  personal  estate  may 
have  against  a  debtor  of  such  estate,  to  T.  I.  Wharlon,  Esq. 


Asa  general  rule,  it  may  be  considered  as  settled,  that  a  creditor,  le- 
gatee, and  distributee,  can  enforce  their  respective  claims  upon  the 
personal  estate  of  a  decedent,  only  by  suit  against  the  executor  or  admin- 
istrator; and  that  they  have  no  right  to  look  beyond  these  functionaries  so 
as  to  render  debtors  to  the  estate  amenable  to  their  suit.  In  England, 
however,  and  in  one  or  two  of  the  United  States,  the  Courts  of  Equity 
have  recognized  certain  exceptions  to  this  rule,  which  it  may  not  be  un- 
important to  notice  in  this  work. 

One  of  the  earliest  reported  cases  in  which  chancery  appears  to  have 
stretched  its  process  beyond  the  personal  representatives  of  a  decedent  is- 
believed  to  be  Newlandv.  Champion,  (a)  There  a  bill  by  a  creditor  against 
the  surviving  partner  of  the  decedent  was  sustained.  The  counsel  for  the 
defendant  admitted,  that  under  special  circumstances,  a  creditor  might  file 
his  bill  against  a  debtor  to  the  estate,  "  as  where  there  is  delay  in  the  re- 
presentative or  collusion  between  the  representative  and  the  debtor."  And 
the  lord  chancellor  (Hardtricke]  after  stating  the  general  rule,  that  "a  cre- 
ditor of  the  testator  need  not  make  any  body  bnt  the  personal  representative 
a  party,"  said  "  At  the  same  lime  in  this  court,  if  there  are  any  persons  who 
have  possessed  the  estate,  or  any  debtors  of  the  deceased,  and  any  collusion 
between  them  and  the  representatives,  they  may  here,  though  not  at  law, 
follow  the  assets,  and  make  them  parties  and  demand  an  account  against 
them:  but  that  is  not  to  be  done  unless  there  is  some  proof  of  collusion:  but  I 
take  the  case  of  a  partnership  to  be  different ;  and  though  there  was  no  sug- 
gestion of  collusion,  yet  1  do  not  think  the  bill  would  have  been  demurra- 
ble  to,  as  has  been  insisted  on."  He,  then,  on  the  ground  that  the  de- 
fendant had  possession  of  a  specific  part  of  the  assets,  directed  an  ac- 
count. It  may  be  observed,  as  was  said  by  Lord  Eldon  in  a  subsequent 
case,  (&)  that  Lord  Hardwicke  does  not  state  any  thing  in  the  judgment 
as  to  delay  or  negligtnce  in  the  executor,  although  delay  is  mentioned  in 
the  argument  of  the  counsel,  as  one  of  the  special  circumstances. 

The  next  case  upon  the  subject,  is  Utter  son  v.  Jt/air,  (c)  which  was. 
a  bill  by  a  creditor  against  the  executor,  and  a  debtor  of  the  estate. 
The  bill  charged,  that  there  was  great  reason  to  apprehend,  that  the  mo- 
ney, if  paid  to  the  executor,  would  be  lost  and  dissipated;  that  the  executor 
was  an  improper  person  to  be  charged  with  the  receipt  thereof,  and 
therefore  prayed  an  injunction  to  restrain  the  debtor  from  paying,  and 
the  executor  from  receiving.  The  Lord  Chancellor  allowed  a  demurrer, 
saying,  "  if  this  suit  was  to  stand,  the  consequence  would  be,  that  every 
creditor  would  be  entitled  to  such  a  bill  against  every  individual  debtor, 
and  the  accounts  would  be  inextricable."  He  then  asks  cui  bono?  and 
adds,  that  "  if  there  is  a  suspicion  that  the  executor  is  insolvent,  and  a 
proper  case  made,  the  court  will  restrain  him,  and  appoint  a  receiver, 
who  is  in  truth  the  executor.  If  it  is  necessary  to  bring  an  action  at  law,  to 
recover  part  of  the  effects,  it  must  be  in  the  name  of  the  executor,  and  the 
court  will  compel  him  to  allow  his  name  to  be  used.  " 

In  this  case,  it  is  to  be  observed,  that  there  was  no  charge  of  collusion. 
It  was  said  by  the  counsel  for  the  bill,  and  admitted  by  the  opposite  coun- 

(a)  1  Vezey,  105.  (c)  4  Bro.  C.  C.  210.  S.  C. 

Cb)  Aliager  v.  Rowley,  6  Ves.  748.  2  Vez.  jr.  95. 


ADDENDA.  455 

sel,  that  bills  of  this  kind  against  the  bank,  the  South  Sea  company,  and 
other  companies  of  that  sort,  who  have  funds  of  a  testator  in  their  hands 
were  frequent. 

Doran  v.  Simpson,  (a)  was  the  case  of  a  bill  by  the  next  of  kin,  against 
the  administrator,  and  a  debtor  of  the  estate;  which  was  sustained  upon  the 
ground  of  "  a  fraudulent  and  interested  collusion  between  them  ''  The  Lord 
Chancellor  (Eldon^  said,  "  in  the  case  of  a  creditor,  or  of  next  of  kin,  if 
they  can  state  a  case  that  the  representative  is  colluding  with  the  debt- 
ors to  the  estate  and  diminishing  the  fund,  they  have  a  right  upon  that 
ground  of  collusion,  to  make  the  debtor  a  party  to  obtain  a  discovery,  and 
upon  that  discovery  to  attach  upon  the  money,  and  to  prevent  the  pay- 
ment of  the  money,  or  a  settlement  of  the  account  by  collusion  between 
the  representative  and  the  debtor." 

In  this  case,  the  decree  was  for  an  account  of  the  personal  estate  of 
the  intestate  in  the  hands  of  the  debtor,  and  an  inquiry  as  to  the  amount 
of  the  complainant's  share,  and  an  order  to  declare  the  debtor  answerable 
for  that  with  costs. 

The  next  case  in  order  of  time,  is  Alsager  v.  Rowley.  (6)  There  a 
bill  by  residuary  devisees  and  legatees  against  the  executor,  and  a  credi- 
tor, whom  it  was  charged,  he  had  overpaid  by  collusion,  was  sustained. 
The  Lord  Chancellor  in  giving  his  decree  recognized  the  general  rule, 
and  seems  to  have  admitted  as  the  only  exceptions,  the  cases  of  collusion 
and  insolvency.  He  referred  to  an  unreported  case,  (Beckley  v.  Dor- 
ringtun,)  before  Lord  Hardwicke,  where  a  bill  by  one  of  two  residuary 
legatees  against  the  executor  and  the  other  residuary  legatee  and  a 
debtor,  suggesting  no  fraud,  nor  suggesting  any  negligence  in  the  execu- 
tor, was  dismissed :  Lord  Hardicicke  saying,  "  there  must  be  collusion 
or  insolvency,  or  some  special  case,"  but  slating  nothing-  in  the  judgment 
as  to  negligence. 

The  latest  English  case  on  the  subject,  is  Burroughs  v.  Elton,  (c)  on  a 
bill  by  a  creditor  against  the  executor,  and  a  person  accountable  to  the  es- 
tate for  the  profits  of  a  colliery,  in  which  the  testator  had  been  concerned. 
The  bill  charged  the  bankruptcy  of  the  executor,  and  that  he  refused  to 
get  in  the  personal  estate;  and  Lord  Eldon  said,  in  substance,  that  where 
an  executor  cannot  or  will  not  act,  and  if  the  creditor  cannot  proceed, 
the  property  will  not  be  amenable  to  the  debts,  then,  in  such  case,  a  cre- 
ditor ought  to  be  permitted  to  sue. 

These  are  the  principal  cases  to  be  found  in  the  English  Chancery  re- 
ports. In  New  York,  as  will  be  seen,  Chancellor  Kent,  adopting  the 
English  rule  with  its  exceptions,  has  gone  a  step  further. 

In  Long  v.  Jtiajestre,  (d)  which  was  a  bill  by  a  creditor  against  an  ad- 
ministrator and  the  surviving  partner  of  the  intestate,  chancellor  Kent 
said,  a  creditor  cannot  make  a  debtor  of  the  estate  a  party,  unless  where 
the  executor  is  insolvent,  or  there  is  collusion,  "  or  where  is  some  other 
special  case,  not  exactly  defined."  In  this  case,  there  was  no  suggestion 
of  insolvency  or  collusion;  but  the  demurrer  was  overruled  on  the  ground 
that  the  defendant  was  a  trustee  as  surviving  partner,  and  the  bill  was 
sustained  in  order  that  there  might  be  "  an  account  of  the  personal  estate 
entire." 

In  the  recent  case  of  Jft'Dowl  v.  Charles,  (e)  the  whole  subject  was 
very  fully  considered. 

There  a  bill  by  a  person  entitled  to  a  distributive  share  against  a  co-dis- 
tributee, who  was  also  a  debtor  to  the  estate  was  sustained. 

(a)  4  Vez.  659.  (d)  1  Johns,  Cha.  Rep.  365. 

(6)  6  Vez.  148.  (e)  6  Johns,  Cha.  Hep.  132. 

(c)  11  Vez.  29. 


456  ADDENDA. 

The  complainant  and  defendant  were  the  only  children  of  the  intestate. 
The  complainant  was  a  feme-covert.  The  defendant,  who  was  indebted  by 
bond  and  mortgage  to  the  estate,  had  not  administered  but  in  fact,  had 
procured  letters  of  administration,  taken  out  by  the  complainant's  hus- 
band, to  be  revoked. 

Chancellor  Kent,  after  stating  the  general  rule,  and  the  special  cir- 
cumstances of  the  case  said,  "  It  is  to  be  presumed  from  the  facts  charged 
in  the  bill,  and  admitted  by  the  demurrer,  that  no  person  has  admin- 
istered upon  the  estate;  and  that  there  are  no  creditors  of  the  estate,  nor 
any  other  person  but  the  plaintiff  entitled  to  call  the  defendant  to  ac- 
count." He  then  examines  all  the  English  cases,  and  concludes,  that  the 
special  circumstances  warrant  a  departure  from  the  general  rule. 

The  Court  of  Equity  of  North  Carolina  has  also  adopted  the  English 
doctrine  on  the  subject.  In  Blanchard  v.  JMc'Laughlin,  (a)  it  was  deci- 
ded, that  "  a  creditor  or  next  of  kin,  cannot,  without  special  circumstan- 
ces, call  upon  a  debtor  to  the  estate;  but  a  bill  will  lie  for  both  against  all 
persons  in  possession  of  the  fund,  who  have  not  paid  for  it  a  valuable  con- 
sideration ."  The  executor,  however,  must  be  made  a  party  to  such  bill. 

NO.  II. 

Will. — In  Lewis  v.  Lewis,  which  was  overlooked,  when  the  subject  of 
that  case  was  treated  of  in  the  text,  it  was  resolved,  that,  the  authentica- 
tion of  a  will  by  the  requisite  number  of  witnesses  is  a  matter  of  law  for 
the  determination  of  the  court,  that  it  belonged  to  the  jury  to  judge  of  the 
sanity  of  the  testator,  and  of  all  questions  of  fraud.  And  that  where  the 
Court  confounded  these  questions  and  submitted  to  the  jury  the  due  exe- 
cution of  the  will,  instructing  them  that  it  was  necessary  to  prove  the  tes- 
tator's knowledge  of  the  contents  of  the  will  by  the  same  number  of  wit- 
nesses as  were  required  to  prove  its  execution,  it  was  held  to  be  error- 
Thai  where  the  execution  of  a  will,  by  a  blind  or  illiterate  man  is  proved 
by  two  witnesses,  one  witness  is  sufficient  to  rebut  the  imputation,  that 
a  paper  of  the  contents  of  which  he  was  ignorant,  was  imposed  upon  him. 
So  on  the  other  hand,  one  witness  is  sufficient  to  set  aside  a  will  on  the 
ground  of  fraud.  It  was  also  decided- in  this  case,  that  it  was  not  necessa- 
ry that  the  contents  of  the  will  should  be  known  to  the  witnesses  unless 
the  will  is  not  signed  by  the  testator,  and  is  not  of  his  hand-writing. — 6  S. 
&  R.  489. 

NO.  in. 

By  act  of  February  18th,  1824,  it  is  provided,  that  when  an  executor, 
guardian,  or  trustee,  shall  have  in  his  hands  any  money,  the  principal  or 
capital  whereof  is  to  remain  for  a  time  in  his  possession,  or  under  his  con- 
trol, and  the  interest,  profits,  and  income  thereof  only,  is  to  be  paid  away 
or  to  accumulate,  the  executor,  administrator,  guardian,  or  trustee,  may 
present  his  petition  to  the  Orphan's  Court  of  the  proper  county,  stating 
the  circumstances  of  the  case,  and  amount  of  the  monies  which  he  is  de- 
sirous of  investing;  and  the  Court,  upon  hearing,  and  due  proof  of  the 
circumstances,  may  make  an  order,  directing  the  investment  of  such  mo- 
ney in  the  stocks  or  debt  of  the  United  States,  or  in  thedebt  of  the  Com- 
monwealth of  Pennsylvania,  or  in  the  debt  of  the  city  of  Philadelphia, 
or  in  real  securities,  at  such  prices,  or  on  such  rates  of  interest,  and  terms 
of  payment,  respectively,  as  the  said  Court  should  think  fit;  and  in  case 
the  money  be  invested  in  conformity  to  such  direction,  the  executor,  ad- 
ministrator, guardian,  or  trustee,  shall  be  exempted  from  all  liability  for 
Joss,  on  the  same,  in  like  manner,  as  if  the  said  investment  had  been  made 

(a)  2  Car.  Law  Rep.  402.    Wharton's  Am,  Digest,  3.  181. 


ADDENDA,  457 

m  conformity  with  a  similar  direction  in  the  wills,  or  other  instruments, 
creating:  the  said  trusts,  or  by  a  law  of  this  state:  Provided,  that  nothing 
in  the  said  act  contained,  shall  be  construed  to  authorise  the  said  Court  to 
make  a  direction  contrary  to  the  direction  contained  in  any  last  will,  or 
other  instrument  in  regard  to  the  investment  of  such  money.— So  much  of 
the  act  of  27th  March,  1713,  as  is  contrary  to  this  act,  is  repealed. 

No.  iv. 

The  Orphan's  Court  of  the  city  and  county  of  Philadelphia,  have  lately 
established  the  following  rule  in  relation  to  applications  by  executors  or 
administrators  after  final  settlement  of  their  accounts,  for  an  order  to  sell 
real  estate  of  their  decedent.  There  must  be  a  true  and  perfect  inven 
tory  and  conscionable  appraisement  of  all  the  testator's  personal  estate, 
whatever,  accompanying  the  final  settlement  of  their  accounts,  and  list 
of  debts;  an  affidavit  must  be  made;  verifying  the  list  of  debts,  and  the 
inventory,  and  the  list  of  debts,  must  be  set  forth  in  the  affidavit. 

No.  v. 

By  act  of  February  5th,  1821,  it  is  provided,  That  where  there  are  re- 
deemable ground-rents,  and  the  owners  are  dead,  or  shall  hereafter  die,  in 
consequence  whereof,  such  rents  shall  become  vested  in  minors,  trustees, 
or  other  persons  not  empowered  to  release  or  extinguish  them,  the  execu- 
tors or  administrators  of  such  owners,  the  guardian  of  such  minor,  01- 
trustee,  or  other  person  authorized  for  the  time  being-,  to  receive  such 
rents,  or  the  grantee,  or  the  heirs  and  assigns  of  the  grantee  of  the  es- 
tates on  which  the  said  rents  are  reserved,  may  present  a  petition  to  the 
Supreme  Court,  or  to  the  Court  of  Common  Pleas,  of  the  County,  in  which 
such  estates  lie,  praying  that  a  release  or  discharge  of  the  said  ground 
rents,  may  be  executed  by  the  executors  or  administrators  of  such  own- 
ers, the  guardian  of  such  minor,  or  trustee,  or  other  person,  authorized 
for  the  time  being,  to  receive  such  rents,  in  such  manner  and  form,  as 
the  Court  shall  judge  to  be  consistent  with  the  true  intent  and  meaning- 
of  the  prirties  to  the  deed,  or  other  assurance,  by  which  such  rents  are, 
or  shall  be,  reserved:  And,  the  Court  having  considered  the  prayer  of 
the  petition,  and  the  contract  upon  which  it  is  founded,  and  having 
adjudged  the  same,  to  be  obligatory  between  the  parties,  shall  make  an 
order,  authorizing,  and  requiring  such  executors,  or  administrators,  the 
guardian  of  such  minor,  or  trustee,  or  other  person  authorized,  for  the 
lime  being,  to  receive  such  rents,  on  payment  being  made  to  him,  her,  or 
them,  of  all  arrearages*of  rent,  and  interest  due  thereon,  if  any,  and  of 
the  additional  sum  of  money,  or  other  equivalent,  specified  in  the  deed,  or 
other  assurance,  by  which  the  rents  aforesaid,  Were  originally  reserved,  to 
execute  a  sufficient  release  or  discharge  of  such  yearly  ground  rents;  and 
the  same  being  executed,  acknowledged,  and  recorded,  according  to  law, 
shall  be  of  like  force  and  effect,  in  extinguishing  such  ground-rents,  as  if 
executed  by  the  grantor  of  such  estates,  in  his  life-time:  That  the  Court, 
in  which  such  proceedings  are  had,  may,  in  their  discretion,  require,  that 
the  executors,  administrators,  guardians,  or  trustees,  shall,  before  execu- 
tion of  the  release,  and  perfecting  the  tkle  as  aforesaid,  give  bond  to  the 
commonwealth,  with  one  or  more  sufficient  sureties,  in  such  penalty  as 
the  Court  may  direct,  conditioned  for  the  proper  and  legal  appropriation 
of  the  money,  or  other  equivalent;  which  bond  shall  be  filed  with  the  clerk 
of  the  Court  aforesaid,  for  the  use  of  the  persons  interested. 

SM 


458  ADDENDA. 


Liability  of  executors  for  costs. — Executor  plaintiff  generally  speak- 
ing,  is  not  personally  liable  for  costs,  either  on  nonsuit  or  verdict,  be- 
cause suing  in  auter  droit,  the  law  does  not  presume  him  to  be  sufficient- 
ly cognizant  of  'be  nature  and  foundation  of  the  claims  he  has  to  as- 
sert, (a)  But,  if  he  bring  the  action  in  his  private  capacity,  and  fail,  he 
will  be  liable  for  costs,  as  in  an  action  for  trover,  and  conversion  subse- 
quent to  testator's  death;  or  for  money  belonging  to  the  testator's  estate, 
had  and  received  by  defendant,  after  death  of  testator;  or  on  a  bond  exe- 
cuted to  him,  by  the  defendant,  for  securing  a  debt  due  to  the  testator,  by 
simple  contract:  Or.  if  he  bring  a  writ  of  error,  where  he  was  liable  to 
costs  in  the  original  action.  (6)  In  these  cases,  the  cause  of  action  ac- 
cruing to  himself,  personally,  he  is  subject  to  costs;  nor  shall  he  be  ex- 
empted therefrom,  by  naming  himself  as  executor  in  an  action  when 
there  is  no  necessity  to  do  so.  (c)  In  such  suits,  he  is  subject  to  costs,  on 
a  judgment  of  nonpros;  and  where  he  has  knowingly  brought  an  action 
wrong,  or  otherwise  been  guilty  of  a  wilful  default,  he  shall  pay  costs  on 
a  discontinuance,  or  for  not  proceeding  to  trial,  according  to  notice;  but 
in  general,  he  is  not  liable  to  costs,  in  either  of  these  two  cases. 

Executor  defendant  shall  pay  costs,  in  case  he  plead  falsely,  within 
his  own  knowledge;  and  the  judgment  for  costs  is  tie  bonis  teslatoris  si,  et 
sinon  de  bonis  propriis.  But,  if  he  plead  plene  administravit,  which  is  ad- 
mitted by  plaintiff,  who  takes  judgment  of  assets  infuturo,  the  defen- 
dant is  not  liable  to  costs.  So  where  executor  pleads  several  pleas  to 
the  whole  declaration,  as  non  assumpsit,  ne  unques  executor,  and  plene  ad- 
ministravit, and  one  of  them  is  found  for  him,  he  is  entitled  to  costs,  al- 
though the  other  pleas  be  found  against  him.  But  if  the  plaintiff  take 
judgment  of  assets  in  futuro,  on  the  plea  of  plene  administravit,  and  go 
to  trial  on  the  plea  of  non  assumpsit,  he  will  be  entitled  to  costs,  if  he  ob- 
tain a  verdict;  and  therefore,  in  such  case,  unless  the  defendant  have  a 
good  ground  of  defence  on  non  assumpsit,  it  is  usual  for  him  to  move  to 
withdraw  his  plea,  which  the  Court  will  permit  him  to  do,  on  payment  of 
costs.  An  executor  defendant  shall  have  costs  in  case  of  a  judgment  in 
his  favour,  (d)  If  the  defence  made  by  the  administrator  be  for  the  pro- 
motion of  his  own  private  interest,  he  cannot  throw  the  costs  on  the  es- 
tate of  the  intestate,  (e) 

(a)  Toller's  Exr.  439,  and  authorities  cited.  (d)  Vide  Toll.  Exr.  468,  and  ajt- 

(6)  Toll.  Exr.  439,  440,  and  authorities  there  thorities  cited. 

cited.  («)  Haslet  v.  Brown,  5  Biun.  138. 
(«)  Ibid. 


APPENDIX. 


APPENDIX. 


PRECEDENTS 


IN  THE 


No.  l. 
PETITION  FOR  CITATION. 

To  the  honourable  the  judges  of  the  Orphan's  Court,  for  the 
city  and  county  of  Philadelphia. 
The  petition  of  A.  B.  &c.  respectfully  represents: 
That  C.  D.  (state  the  grievance  of  which  the  petitioner  com' 
plains,)  and  the  said  A.  B.  prays  that  the  court  will  award  a  cita- 
tion directed  to  the  said  C.  D.  commanding  him,  &c. 


No.  2. 
CITATION. 

County  of  Philadelphia,  ss. 

The  commonwealth  of  Pennsylvania.     To  A.  B. 

We  command  you  that  laying  aside  all  business  and  excuses 
whatsoever,  you  be  and  appear,  in  your  proper  person,  before  our 
justices  of  the  Orphan's  Court,  at  an  Orphan's  Court  to  be  held 
at  Philadelphia,  for  the  city  and  county  of  Philadelphia,  on  the 
day  of  then  and  there  to  shew  cause,  &c.  &c. — and  herein  fail 
not.  Witness  J.  H.  Esq.  president  of  said  Orphan's  Court  at  Phi- 
ladelphia, the  day  of  in  the  year  of  our  Lora  one 
thousand  eight  hundred, — 

T.  F.  G.  Clerk. 


\_Proof  of  service  is  endorsed  on  the  back  in  the  followin 
C.  D.  being  duly  sworn  (or  affirmed)  according  to  law  deposes 


ii  APPENDIX. 

that  he  served  the  within  citation,  on  the        day  of          by  deli- 
vering a  true  copy  thereof  to  the  said  A.  B.  in  person,  (or) 

By  leaving  a  copy  at  the  usual  place  of  abode,  of  the  said  *\.  B, 
(Or)  that,  he  has  not  served  the  said  citation,  because  the  said 
A.  B.  cannot  be  found,  although  deponent  have  made  diligent 
search  for  him. 

Wherever  the  plaintiff  means  to  proceed  by  attachment,  the  re- 
turn must  be  sworn  to,  in  open  court,  in  other  cases,  if  the  deposi- 
tion be  made  before  a  justice,  it  is  sufficient. 


No.  4. 
ATTACHMENT. 

City  and  county  of  Philadelphia,  ss. 

The   commonwealth  of  Pennsylvania:    To  the  sheriff  of  the 
said  city  ami  county  greeting: 

We  command  you  to  attach  A.  B.  so  as  to  have  him  before  our 
Orphan's  Court,  of  she  said  city  and  county,  on  the         day  of 

at  10  o'clock  of  the  forenoon,  then  and  there  to  answer  us, 
as  well  touching  a  contempt  which  he,  as  it  is  alledged,  hath  com- 
mitted against  us,  as  also  such  other  matters  as  shall  be  then  laid 
to  his  charge;  and  further  to  abide  such  order  as  our  said  court 
shall  make  in  this  behalf;  and  hereof  fail  not.  Witness  John  Hal- 
lowell,  Esq.  president  of  said  court  at  Philadelphia  aforesaid,  the 
day  of  in  the  year,  &c. 

T.  F.  G.  Clerk. 


No.  5. 
RETURN,  &c. 

The  sheriff,  &c.  returns;  &c.  that  he  has  not  executed  the  with- 
in writ  directed  to  him,  for  that  the  said  A.  B.  is  not  to  be  found 
within  his  bailiwick,  (or)  T.  F.  Sheriff. 

The  sheriff  makes  return,  that  in  obedience  to  the  within  writ, 
he  has  attached  the  said  A.  B.  and  has  him  here  before  the  court, 
to  submit,  &c. 

Signed.  T.  F.  Sheriff. 

No.  6. 
ATTACHMENT  WITH  PROCLAMATION. 

City  and  county  of  Philadelphia,  ss. 

The  commonwealth,  &c. 

To  the  sheriff,  &c. 

We  command  you  to  cause  public  proclamation  to  be  made  in 
all  places  in  your  bailiwick,  wheresoever  and  however  you  shall 


APPENDIX.  iii 

think  it  most  convenient,  that  A.  B.  do  on  the  day  of  personally 
appear  before  the  justices  of  our  Orphan's  Court  of  the  said  county, 
at  Philadelphia,  aforesaid:  And  nevertheless  if  in  the  mean  time 
you  can  find  the  said  A.  B.  to  attach  him,  so  as  to  have  him  before 
the  said  court  at  the  time  before  mentioned,  there  to  answer  to  us 
as  well  touching  a  contempt  which  he  hath  it  is  alledged  commit- 
ted against  us,  as  touching  such  things  as  shall  be  then  laid  to  his 
charge:  and  further  to  perform  and  abide  such  order,  as  our  said 
court  shall  make  in  this  behalf.  Witness  J.  H,  president  of  said 
court  at  Philadelphia,  this  day  of  in  the  year  of  our 

Lord,  etc.  T.  F.  G.  Clerk. 


No.  7. 

RETURN,  etc. 
City  and  county  of  Philadelphia,  ss. 

C.  D.  sheriff  returns,  that  he  executed  the  within  writ,  by  pub- 
lishing the  same  in  two  daily  newspapers,  to  wit,  the 
and  the  for  the  space  of  four  weeks;  that  he  has  not 

attached  the  said  A.  B.  for  that  the  said  A.  B.  is  not  to  be  found 
within  his  bailiwick. 


No.  8. 
WRIT  OF  SEQUESTRATION. 

City  and  county  of  Philadelphia,  ss. 

The  commonwealth  of  Pennsylvania: 

To  D.  E.  F.  G.  H.  I.  K.  of  the  said  city  and  county  greeting: 

Whereas,  A.  B.  complainant  exhibited  his  petition  in  the  Or- 
phan's Court  of  the  said  city  and  county,  against  C.  D.  defendant; 
and  whereas  the  said  C.  1).  being  duly  served  with  a  writ,  from 
this  court,  commanding  him,  under  the  penalty  therein  mention- 
ed, to  appear  and  answer  said  complaint,  hath  refused  so  to  do, 
and  thereupon  all  process  of  contempt  has  issued  against  him. 

Or,  £thata  citation  from  the  said  court  was  issued,  directed  to 
the  said  C.  D.  but  that  the  said  C.  D.  in  order  to  avoid  being  served 
with  the  same,  hath  absconded,  and  cannot  be  found  as  by  the 
return,  to  the  said  citation,  on  oath  appears/]  And  whereas  the 
said  C.  D.  hath,  of  late  absconded  and  so  concealed  himself,  that 
the  sheriff' hath  not  been  able  to  find  him,  as  by  the  return  on 
oath  of  the  said  sheriff  appears.  Know  ye  therefore  that,  we  in 
confidence  of  your  prudence  and  fidelity,  have  given  and  by  these 
presents  do  give  to  you,  full  power  and  authority  to  enter  upon 
all  the  messuages,  lands,  tenements,  and  real  estate  whatsoever, 
of  the  said  C.  D.  and  take,  collect,  receive  and  sequester  into 
your  hands,  not  only  all  the  rents  and  profits  of  the  said  messuages, 
lands,  tenements,  and  real  estate,  but  also  all  his  goods,  chattels, 


iv  APPENDIX. 

and  personal  estate  whatsoever,  and  therefore  we  command  you 
any  three  or  two  of  you,  that  you  do,  at  certain  proper  and 
convenient  days  and  hours,  go  to,  and  enter  upon  all  the  mes- 
suages, lands,  tenements,  and  real  estate  of  the  said  C.  D.  and 
that  you  do  collect  and  take  and  get  into  your  hands,  not  only  the 
rents  and  profits  of  all  his  said  real  estates,  but  also  his  goods 
chattels  and  personal  estate,  and  keep  the  same  under  sequestra- 
tion in  your  hands,  until  the  said  C.  D.  shall  fully  answer  the 
complainant's  charge  [do  that  which  the  court  has  command^d~\ 
clear  his  contempt,  and  the  said  court  make  other  order  to  the 
contrary.  Witness  J.  H.  Esq.  president  of  the  said  court,  this 
day,  &c.  E.  K.  Clerk. 


No.  9. 

In  the  matter  of  the  will  of  A.  B.  deceased,  C.  D.  appeals  from 
the  decree  of  the  register,  (admitting  the  same  to  probate)  or 
(disallowing  the  probate  thereof)  or, 

In  the  matter  of  the  administration  of  the  goods  and  chattels, 
etc.  of  A.  Bi  deceased,  C.  D.  appeals  from  the  decree  of  the  re- 
gister (granting  letters  to  E.  F.)  or  (not  revoking  the  letters  grant- 
ed to  E.  F.) 


No.  10. 

Whereas  C.  E.  by  her  attorney  T.  F.  G.  did  on  the        day  of 
enter  an  appeal  in  the  Register's  Office  at  Philadelphia 
to  the  Register's  Court,  of  the  aforesaid  city  and  county,  against 
the  probate  made  in  the  said   Register's  Office  of  a  paper  writing 
bearing  date  the          day  of  purporting  to  be  the  last  will 

and  testament  of  F.  H.  deceased,  whereof  J.  C.  was  appointed 
sole  executor.  And  the  said  J.  C.  and  C.  E.  requesting  that  the 
proof  of  the  said  will  or  pretended  will  may  be  tried  by  a  jury 
and  an  issue  directed  for  the  trial  thereof  in  the  district  court  for 
the  city  and  county  of  Philadelphia.  It  is  hereby  ordered  that 
the  said  J.  C.  enter  an  action  upon  the  case  in  the  said  court,  as 
of  term,  now  next  ensuing,  in  the  name  of  him  the  said  J. 

C.  against  her  the  said  C.  E.  and  that  the  said  C.  E.  cause  an  ap- 
pearance to  be  entered  for  her  to  the  same;  and  that  the  said  J  C. 
shall  declare  as  of  the  said  term,  upon  a  discourse  had  and  moved 
by  and  between  the  said  parties,  of  and  concerning  the  said  in- 
strument of  writing,  and  whether  the  same  is  the  will  of  the  said 
F.  H.  deceased.  And  that  the  said  C.  in  consideration  of  a  mu- 
tual promise  on  the  part  of  the  said  J.  to  him  made,  did  promise 
to  pay  to  the  said  J.  the  sum  of  five  hundred  dollars,  in  case  the 
said  instrument  was  the  last  will  and  testament  of  the  said  F. 
and  that  the  said  C.  shall  plead  to  issue  that  the  said  instrument 


APPENDIX.  v 

of  writing  is  not  the  last  will  and  testament  of  the  said  F.  H.  de- 
ceased, so  that  the  said  issue  may  be  tried  by  a  jury,  the  said  J. 
affirming  the  said  instrument  to  be  the  last  will  and  testament  of 
the  said  F.  and  the  said  C.  denying  it. 

And  it  is  further  ordered  and  agreed,  that  the  circumstances  of 
the  said  mutual  promises,  and  of  the  affirmations  and  assertions 
laid  in  the  declaration,  shall  be  confessed,  so  that  the  trial  maj  be 
on  the  merits;  and  the  costs  shall  follow  the  verdict,  but  the  said 
verdict  shall  give  no  title  to  either  party  to  recover  of  the  other, 
the  sum  laid  in  the  declaration. 

SAMUEL  BRYAN.  Register. 

JACOB  RUSH,  President. 

JOHN  GEYER.     7    T    ,. 

JOHN  CONARD.$    Jui 

RETURN  OF  AN  ISSUE  FROM  COMMON  PLEAS. 

I,  John  Porter,  prothonotary  of  the  common  Pleas,  for  the  city 
and  county  of  Philadelphia,  do  certify  that  at  a  Court  of  Com- 
mon Pleas,  held  at  Philadelphia,  on  the  day  of  A.  D. 
18 — ,  on  an  issue  formed  to  try  the  validity  of  the  within  will, 
wherein  J.  C.  was  plaintiff,  and  C.  E.  was  defendant,  a  special 
jury  being  called,  came,  to  wit:  A.  B.  C.  &c.  who  being  duly 
sworn  or  affirmed  respectively,  do  say  (they  find  for  the  plaintiff, 
and  assess  damages  at  six  cents,  with  six  cents  costs;)  (or  if  the 
verdict  be  for  the  defendant,}  they  find  for  the  defendant. 
In  testimony,  &c. 

J.  P.  Prothonotary. 

No.  1 1 . 
AFFIDAVIT  ON  APPEAL. 

In  the  matter  of  the  will  of  C.  D. 

A.  B.  being  duly  sworn,  (or  affirmed,)  says,  that  the  appeal 
made  in  his  case,  is  not  for  the  purpose  of  delay.    Sworn,  &c. 
Signed,  A.  B. 

No.  12.  (a) 
[On  appeal  from  the  Register's  to  the  Supreme  Court,  it  is  the 

practice  to  enter  into  a  recognizance  before  the  prothonotary  or 

commissioner  of  bail  in  the  Supreme  Court.'] 
Recognizance,  Sfc. 

In  the  Supreme  Court,  for  the  eastern  district  of  Pennsylvania, 
of  December  term,  18 — . 

In  the  case  of  the  will  of  C.  D.  deceased. 

Appeal  by  A.  B.  (state  the  character  of  A.  B.  in  relation  to  the 
will,  whether  legatee,  «5*c.)  from  the  decree  of  the  Register's 
Court,  for  the  city  and  county  of  Philadelphia,  establishing  the 
said  will. 


vi  APPENDIX. 

Be  it  remembered  that  on  this          day  of  before  me 

(the  prothonotary,  or  commissioner  of  bail)  came  A.  B.  E.  F.  &G. 
H.  of  the  city  of  Philadelphia,  who  then  and  there  jointly  and 
severally  acknowledged  themselves  to  be  held  and  firmly  bound 
unto  (J.  K.  the  appellee)  in  the  sum  of  (sufficient  to  cover 

all  costs,}  lawful  money  of  the  United  States,  to  be  levied  of  their 
goods  and  chattels,  lands  and  tenements,  if  the  said  A.  B.  shall 
fail  to  perform  the  conditions  here  und^r  written. 

Whereas,  by  a  definitive  sentence  of  the  Register's  Court  of 
the  city  and  county  of  Philadelphia,  held  at  Philadelphia,  on  the 
day  of  now  last  past,  the  said  court  decreed  that  a 

certain  paper  writing,  purporting  to  be  the  will  of  C.  D.  deceased, 
should  bij  held  and  confirmed  £S  the  last  will  and  testament  of 
the  said  C.  D.  deceased,  and  should  be  admitted  to  probate  accor- 
dingly; from  which  definitive  sentence  the  said  A.  B.  has  appeal- 
ed, to  the  said  Supreme  Court. 

Now  therefore  the  condition  of  this  recognizance  is  such,  that 
if  the  said  A.  B.  shall  prosecute  his  said  appeal  with  effect,  and 
shall  in  case  the  said  sentence  be  affirmed,  duly  pay  to  the  said 
appellee  double  costs  in  the  matter  of  the  said  appeal. 

Taken  and  acknowledged,  this        day  of  18. 

Signed  A.  B. 

E.  F. 
G.H. 

On  appeal  it  is  the  practice,  for  the  attorney  to  make  up  a  for- 
mal statement  of  the  proceedings  in  the  Registers  Court,  arid  file 
it  in  the  Supreme  Court  with  his  appeal.  We  give  the  follow- 
ing form. 


No.  12.  (b) 

At  a  Register's  Court  holden  in  the  city  of  Philadelphia,  on  the 
day  of  in  the  year  of  our  Lord  one  thousand  eight 

hundred  and  twenty  two. 

Present  the  honourable  J.  H.  president  of  the  court  of  common 
pleas.  P.  S.  M.  register  of  wills,  and  H.  F.  associate  justice  of 
the  common  pleas. 

In  the  matter  of  the  probate  of  the  will  of  C.  D.  deceased,  an 
appeal  having  been  made  to  this  court,  by  A,  B.  from  the  decree 
of  the  register,  ordering  the  probate  of  the  said  will,  the  same 
came  on  to  be  heard,  when  the  said  A.  B.  and  a  certain  E.  F. 
were  heard  by  their  respective  counsel,  the  said  A.  B.  impeaching 
the  decision  of  the  said  register,  and  the  said  E.  F.  maintaining 
the  same:  And  on  the  application  of  the  said  A.  B,  the  following 
evidence  was  offered  and  received  by  the  said  court;  to  wit: 

(Hera  state  the  evidence  offered  both  oral  and  ivritten.) 


APPENDIX.  vii 

And  on  the  application  of  the  said  E.  F.  the  following  evidence 
was  received. 

(Here  state  the  evidence  offered  and  received.) 

Whereupon  the  allegations  and  proofs  aforesaid,  having  been 
duly  heard  and  considered,  it  is  ordered,  adjudged  and  decreed 
that  the  paper  writing  purporting  to  be  the  last  will  and  testa- 
ment of  C.  1).  deceased,  be  established,  and  admitted  to  probate 
as  the  last  will  and  testament  of  the  said  C.  D.  deceased. 
Signed,  T.  S.  M.  Register. 

J.  H.  President,  C.  P. 
H.  F.  Associate,  J.  C.  P. 

The  register  and  judges  before  whom  the  case  is  heard  signing 
the  statement. 

APPEAL. 

In  the  case  of  the  will  of  C.  D.  deceased. 

A.  B.  enters  an  appeal  from  the  decree  of  Register's  Court,  in 
and  for  the  city  and  county  of  Philadelphia,  directing  the  said 
will  to  be  admitted  to  probate. 

November       18 

Signed,    ,   •  *..       T.  F.  G.  Attorney  for  A.  B. 

If  an  issue  be  formed  and  sent  to  the  Common  Pleas,  the  pro- 
ceedings should  state. 

"  On  the  application  of  the  said  A.  B.  (or  of  the  said  E.  F.  the 
court  directed  an  issue  to  be  formed  for  the  purpose  of  determin- 
ing whether  a  certain  paper  writing,  averred  to  be  the  last  will  and 
testament  of  the  said  C.  D.  was  in  fact  the  last  will  and  testament 
of  the  said  C.  D.  which  issue  was  framed  in  the  following  terms, 
(see  No.  10,  a)  and  sent  to  the  court  of  Common  Pleas,  of  the 
city  and  county  of  Philadelphia,  for  trial:  And  the  said  Court 
of  Common  Pleas,  made  the  following  report  to  the  said  Regis- 
ter's Court,  (No.  10,  6.) 

Whereupon  the  Register's  Court,  after  due  consideration,  or- 
dered, adjudged  and  decreed,  that  the  said  paper  writing,  be 
established  as  the  last  will  and  testament  of  the  said  C.  D.  and 
that  it  be  admitted  to  probate  accordingly. 

(Then  follows  the  declaration  of  appeal  as  above.) 

The  following  is  the  form  of  proceedings  in  the  case  of  a  dis- 
puted claim  to  administration,  cum  testamento  annexo. 


No.  12.  (c.) 

At  a  Register's  Court,  holderi  in  the  city  of  Philadelphia,  OR 
the  2d  and  6th  days  of  December,  A.  D.  1 8 — 

Present,  the  honourable  J.  H.  president  of  the  Court  of  Com- 
mon Pleas,  P.  S.  M.  register  of  wills,  and  H.  F.  associate  judge 
of  the  Common  Pleas. 

On  application  of  Robert  Stewart,  and  on  that  of  Samuel  Smith 
or  administration,  de  bonis  non,  of  Richard  Neave,  deceased,  cum 


viii  APPENDIX. 

testamentn  unnejco,  the  register  decreed  that  such  administration 
be  granted  1o  S.  Smith,  and  an  appeal  to  his  decree  being  made 
to  the  Register's  Court,  the  respective  applicants  were  heard  by 
their  counsel,  and  in  support  of  their  said  applications  the  follow- 
ing evidence  was  oft'ered,  and  received  by  the  court;  to  wit: 

On  the  application  of  the  said  Robert  Stewart.  (Here  state 
the  evidence.) 

On  the  application  of  the  said  Samuel  Smith,  (state  the  evi- 
dence.) 

Whereupon  this  sixth  day  of  December  A.  D.  1822,  the  appli- 
cants having  been  heard  by  their  counsel,  and  their  allegations, 
and  proofs  aforesaid  duly  considered,  it  is  ordered  and  decreed, 
that  letters  of  administration  de  bonis  non,  with  the  will  annexed 
of  Richard  Neave,  deceased,  be  granted  to  the  said  Samuel  Smith, 
he  giving  bond  with  sureties  in  due  form  of  law,  in  the  sum  of 
forty  thousand  dollars.  And  J.  S.  and  J.  R.  are  approved  as 
sureties.  Signed.,  &c. 

(Here  follows  the  declaration  of  appeal.) 
Proceedings  on  the  revocation  of  letters  of  administration. 


No.  12, 
Register's  Office,  Philadelphia,  December  llth.  1818. 

Citation  to  P.  L.  B.  administrator,  de  bonis  non,  with  the  will 
annexed  to  the  estate  of  D.  L.  deceased,  to  appear  at  the  Re- 
gister's office,  on  Monday  the  14th  day  of  December  1818,  at  10 
of  the  clock,  A.  M.  to  shew  cause,  (if  any  he  hath)  wherefore  the 
aforesaid  letters  of  administration  ought  not  to  be  revoked. 

Monday  14th  December,  1818,  ten  of  the  clock,  A.  M.  The 
parties  attended  at  the  Register's  office,  to  wit,  H.  H.  Esq.  as 
attorney  for  P.  L.  B.  and  S.  E.  Esq.  for  M.  L.  and  also  as  attorney 
for  E.  L.  and  J.  S.  the  executors  of  J.  L.  deceased,  who  was  the 
surviving  executor  of  the  last  will  and  testament  of  D.  L.  deceas- 
ed. After  some  time  spent  in  the  discussion  of  the  case,  adjourned 
until  Thursday  the  17th  day  of  December  1818,  at  11  of  the 
clock  A.  M.  when  the  parties  again  attended  and  after  a  full 
hearing  of  the  case,  the  register  informed  the  parties  he  would 
deliver  his  opinion  and  decision  at  10  of  the  clock  A.  M.  the 
next  day. 

At  the  time  appointed  the  register  stated  that  from  the  final 
view  he  had  taken  of  the  pending  case,  he  would  confine  himself 
to  a  single  point  in  the  case.  He  said  he  was  of  opinion  that  E. 
L.  and  J.  S.  the  executors  of  the  last  will  and  testament  of  J.  L. 
deceased,  who  was  the  surviving  executor  of  the  last  will  and 
testament  of  D.  L.  deceased,  were  the  executors  of  the  last  will 
and  testament  of  the  said  D.  L.  deceased,  to  all  intents  and  pur- 
poses whatsoever,  and^that  therefore  his  decision  is  that  the  letters 


APPENDIX.  is 

of  administration  de  bonis  non,  with  the  will  annexed  to  the  es- 
tate of  D.  L.  deceased,  which  had  been  erroneously  granted  unto 
P.  L.  B.  ought  to  be  revoked. 

December  22d,  1818,  P.  L.  B.  by  J.  R.  H.  his  attorney,  appeals 
from  the  above  decision  to  the  Register's  Court. 

Signed  J.  R.  H.  attorney  for  P.L.  B. 

At  a  Register's  Court  held  for  .the  city  and  county  of  Philadel- 
phia, at  the  county  court  house  on  Monday,  the  15th  day  of 
February,  1819,  at  ten  of  the  clock,  A.  M.  to  hear  the  aforegoing 
appeal.  Present,  SAMUEL  BRIAN,  Esq.  Register. 

The  honourable  JACOB  RUSH, 
GEORGE  MORTON,  Esq. 

The  parties  not  being  ready  to  proceed  in  the  discussion  of  the 
case,  adjourned  until  10  of  the  clock,  to-morrow,  A.  M. 

Tuesday,  16th  of  February,  1819,  10  of  the  clock,  A.  M.  The 
Register's  Court  met  to  hear  the  aforegoing  appeal.  Present  the 
same  judges. 

The  case  of  the  aforesaid  appeal  having  been  fully  heard,  the 
Register's  Court  unanimously  affirmed  the  decision  of  the  Regis- 
ter. SAMUEL  BRYAN,  Register. 

JACOB  RUSH. 
GEORGE  MORTON. 

(Here  follows  the  declaration  of  appeal  to  the  Supreme  Court, 
oath,  and  recognizance.) 


No.  13. 
EXECUTORS'  OATH. 

"You  and  each  of  you  do  swear,  that  as  executors  of  the  testa- 
ment and  last  will  ot  A.  B.  deceased,  you  will  well  and  truly 
administer  the  goods  and  chattels,  rights  and  credits  of  the  said 
deceased;  that  you  will  make  a  true  and  perfect  inventory  there- 
of, and  exhibit  the  same  into  the  register's  office  at  for  the 
county  of  in  one  month  from  this  date,  and  a  final  settlement 
and  reckoning  of  the  estate  of  the  said  A.  B.  deceased  in  one 
year,  or  when  thereunto  legally  required.  So  help  you  God." 


No.  14. 
LETTERS  TESTAMENTARY. 

County,  ss. 

By  the  tenor  of  these  presents,  I,  R.  H.  Esq.  register  for  the 
probate  of  wills  and  granting  letters  of  administration  in  and  for 
the  county  of  in  the  commonwealth  of  ,  Do  make 

known  unto  all  men  that  on  the  day  of  the  date  hereof,  at 
before  me  was  proved,  approved,  and  insinuated,  the  last  will  and 
testament  of  B.   R.  late  of,  &c.  yeoman  deceased  (a  true  copy 

A 


x  APPENDIX. 

whereof  is  to  these  presents  annexed)  having  whilst  he  lived  and 
at  the  time  of  his  death,  divers  goods,  chattels,  rights  and  credits 
within  the  said  commonwealth,  by  reason  whereof,  the  approba- 
tion and  insinuation  of  the  said  last  will  and  testament,  and  the 
committing  the  administration  of  all  and  singular  the  goods  chat- 
tels, rights  and  credits,  which  were  of  the  said  deceased,  and 
also  the  auditing  the  accompts,  Calculations  and  reckonings  of  the 
said  administration,  and  a  final  dismiss/on  from  the  same,  to  me 
are  manifestly  known  to  belong,  and  that  administration  of  all 
and  singular  the  goods,  chattels,  rights  and  credits  of  the  said 
deceased  any  way  concerning  his  last  will  and  testament  was 
committed  to  S.  P.  and  R.  T.  in  the  said  testament  named,  they 
having  first  been  duly  sworn  [or  affirmef]  well  and  truly  to  ad- 
minister the  goods,  chattels,  rights  and  credits  of  the  said  deceased, 
and  make  a  true  and  perfect  inventory  thereof,  and  exhibit  the 
same  into  the  register's  office  at  aforesaid,  on  or  before  the 
ninth  day  of  January  next,  ana  to  render  a  true  and  just  calcu- 
lation and  reckoning  of  the  said  administration  on  or  before  the 
ninth  day  of  December  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  eleven,  or  when  thereunto  lawfully  required. 

In  testimony  whereof  I  have  hereunto  set  my  hand  and  caused 
the  seal  of  said  office  to  be  hereunto  affixed.     Dated  at  the 

ninth  day  of  December  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  ten. 

•  R.  H.  register. 


No.  15. 
ADMINISTRATORS'  OATH. 

"You  and  each  of  you  do  swear,  that  as  administrators  of  all 
and  singular  the  goods  and  chattels,  rights  and  credits  which 
were  of  A.  B.  deceased  (who  died  intestate)  you  will  well  and 
truly  administer;  &c.  [as  in  executors'  oath  above.^\ 


No.  16.  (a.) 
LETTERS  OF  ADMINISTRATION. 

I,  H.  B.  Esq.  register,  &c.  (as  before)  To  A.  B.  of,  &c. gentleman, 
do  send  greeting: 

Whereas,  C.  D.  late  of  &c.  yeoman,  deceased,  lately  died  in- 
testate (as  'tis  said)  having,  whilst  he  lived,  and  at  the  time  of 
^his  decease,  divers  goods  and  chattels,  rights  and  credits,  within 
the  said  county,  by  means  whereof  the  disposition  and  power  of 
granting  le  rers  of  administration  thereof,  is  manifestly  known  to 
belong-to  m ••:  I  therefore,  desiring  that  the  goods  and  chattels, 
rights  and  credits,  which  were  of  the  said  deceased,  may  be  well 
and  truly  administered,  converted  and  disposed  of  according  to 


APPENDIX.  xi 

law,  do  hereby  grant  unto  you  the  said  A.  B.  (irf  whose  fidelity  in 
this  behalf,  I  very  much  confide)  full  power,  by  the  tenor  of  these 
presents,  to  administer  the  goods  and  chattels,  rights  and  credits, 
which  were  of  the  said  deceased,  within  the  said  county:  as  also 
to  ask,  collect,  levy,  recover  and  receive,  the  credits  whatso- 
ever of  the  said  deceased,  which  at  the  time  of  his  death  were 
owing,  or  did  any  way  belong  to  him,  and  to  pay  the  debts  in 
which  the  said  deceased  stood  obliged,  so  far  forth  as  the  said 
goods  and  chattels,  rights  and  credits  will  extend,  according  to 
the  rate  and  order  of  law,  you  the  said  A.  B.  well  and  truly  ad- 
ministering the  goods  and  chattels,  rights  and  credits  which  were 
of  the  said  deceased,  and  making;  a  true  and  perfect  inventory 
and  conscionable  appraisement  thereof,  and  exhibiting  the  same 
into  the  register's  office  at  on  or  before  the  day  of 

next  ensuing:  and  alsoa  true  and  just  account,  calculation  and 
reckoning  of  your  administration,  upon  your  solemn  oath  or  affir- 
mation, rendering  on  or  before  the  day  of  in  the  year 
of  our  Lord  And  I  do  by  these  presents,  ordain,  constitute 
and  appoint  you  the  said  A.  B.  to  be  administrator  of  all  and 
singular  the  goods  and  chattels,  rights  and  credits,  which  were  of 
the  said  deceased,  within  the  limits  aforesaid,  saving  harmless, 
and  forever  indemnifying  me,  and  all  other  officers,  against  all 
persons  whomsoever,  by  reason  of  your  administration  aforesaid, 
and  saving  all  others  their  rights,  &c.  In  testimony  whereof,  &c. 
(as  before.) 


No.  16.  (6.) 

LETTERS  OF  ADMINISTRATION  WITH  THE  WILL 
ANNEXED. 

By  the  tenor  of  these  presents,  I.  R.  H.  Esq.  register,  &c.  (as  be- 
fore) Do  make  known  unto  all  people,  that  on  the  day  of  A. 
D.  before  J.  M.  Esq.  late  register  for  the  county  aforesaid,  was 
proved  in  due  form  of  law,  a  certain  instrument  of  writing  pur- 
porting to  be  the  last  will  and  testament  of  J.  S.  late  of 
township  in  the  county  aforesaid,  widow,  deceased,  wherein  J.  B. 
and  J.  M.  were  appointed  executors,  but  who  afterwards  (it  is  said) 
refused  to  act;  as  in  and  by  the  said  will,  filed  in  the  register's 
office  at  may  appear.  She  the  said  J.  S.  having,  whilst  she 

lived,  and  at  the  time  of  her  death,  divers  goods,  chattels,  rights 
and  credits  within  the  said  county  and  commonwealth,  by  means 
whereof  the  full  disposition  and  power  of  granting  and  ordaining 
th^  ad  ministration  of  all  and  singular  the  goods,  chattels,  rights 
and  credits  of  the  said  deceased,  and  also  of  auditing  the  accompts, 
calculation  or  reckoning,  and  the  final  discharge  and  dismission 
from  the  same,  to  me  are  manifestly  known  to  belong.  I,  desir- 
ing therefore  that  the  goods  and  chattels,  rights  and  credits  which 


xii  APPENDIX, 

were  of  the  said  deceased,  may  be  well  and  truly  administered, 
converted  and  disposed  of,  according  to  the  said  last  will,  and 
for  the  uses  therein  mentioned,  do  grant  unto  you  R.  S.  (in  whose 
fidelity  in  this  behalf  I  very  much  confide)  full  power,  by  the 
tenor  of  these  presents,  to  administer  the  goods,  chattels,  rights 
and  credits  of  the  said  deceased,  which  at  the  time  of  her  death 
were  owing,  or  to  her  did  in  any  wise  belong;  and  to  pay  the 
debts  in  which  the  deceased  stood  obliged,  so  far  forth  as  the  said 
goods,  chattels,  rights  and  credits  will  extend,  according  to  the 
rate  and  order  of  law,  especially  of  well  and  truly  administering 
the  goods,  chattels,  rights  and  credits  of  the  said  deceased,  and 
exhibiting  an  inventory  of  the  same  into  the  register's  office  at 
on  or  before  the  day  of  next  ensuing,  and 

of  rendering  a  just  and  true  account  of  the  said  administration, 
on  or  before  the  day  of  next  following.  And  I  do 

ordain,  depute  and  constitute  you  the  said  R.  S.  to  be  adminis- 
trator of  all  and  singular  the  goods,  chattels,  rights  and  credits 
which  were  of  the  said  J.  S.  deceased,  to  the  use  and  for  the  use 
and  for  the  purposes  in  the  sai'l  will  (which  is  hereto  annexed) 
mentioned,  saving  harmless  and  forever  .indemnify  ing  me  and  all 
other  officers  against  all  persons  whomsoever,  by  reason  of  your  ad- 
ministration aforesaid,  and  saving  all  others  their  rights.  In  testi- 
mony whereof,  &c. 


No.  16.  (c.) 

LETTERS  OF  ADMINISTRATION  pendente  lite. 
[,  R.  H.  esquire,  register,  &c.  (as  before)  To  J.  L.  C.  F.  J.  R.  and 

J.  C.  all  of  township,  in  the  county  aforesaid,  greeting; 

Whereas  G.  F.  late  of  in  the  said  county  of  did  by 

a  certain  instrument  of  writing,  purporting  to  be  his  last  will  and 
testament,  bearing  date  the  day  of  appoint  the  afore- 

said J.  L.  C.F.  J.  R.  and  J.  C.  executors  thereof.  And  whereas 
at  a  register's  court,  held  at  in  and  for  the  county  aforesaid, 

the  day  of  this  instant,  for  the  purpose  of  trying  the  validity 

of  the  said  instrument  of  writing,  an  issue  was  ordered  to  be  sent 
into  the  court  of  Common  Pleas  of  said  county,  to  try  the  said 
fact;  which  said  issue  was  sent  up  accordingly,  as  will  appear  by 
the  records  of  the  said  court.  And  now  to  wit,  I,  R.  H. 

register  as  aforesaid,  desiring  that  the  goods  and  chattels, 
rights  and  credits  of  the  said  G.  F,  deceased,  may  be  well 
and  truly  administered,  converted  and  disposed  of  according  to 
law,  during  the  trial  of  the  said  issue,  do  grant  unto  you  the  said 
J.  L.  C.  F.  J.  R.  and  J.  C.  full  power,  by  the  tenor  of  these  pre- 
sents, to  administer  the  goods  and  chattels,  rights  and  credits 
which  were  of  the  said  deceased,  within  the  said  county,  as  also 
to  ask,  collect,  levy,  recover  and  receive  the  credits  whatsoever 
of  the  said  deceased,  which  at  the  time  of  his  death,  were  owing1. 


APPENDIX.  xiii 

or  did  any  way  belong;  to  him  and  to  pay  the  debts  in  which  the 
said  deceased  stood  obliged,  so  far  forth  as  the  said  goods,  chattels, 
rights  and  credits  will  extend,  according  to  the  rate  and  order  of 
law,  especially  of  well  and  truly  administering  the  goods  and 
chattels,  rights  and  credits  which  were  of- the  said  deceased,  and 
making  a  true  and  just  account,  calculation  and  reckoning  of  your 
administration,  upon  your  solemn  oaths  or  affirmations,  to  render, 
at  or  before  the  day  of  or  when  thereunto  legally  called 

and  required.  And  I  do  by  these  presents  ordain,  constitute 
and  depute  the  said  J.  L.  C.  F.  J.  RY  and  J.  C.  administrators 
(pende nte  lite]  of  all  and  singular  the  goods  and  chattels,  rights 
and  credits  which  were  of  the  said  deceased,  within  the  limits 
aforesaid,  saving  harmless,  and  forever  indemnifying  me,  and  all 
other  officers,  against  all  persons,  by  reason  of  your  administra- 
tion aforesaid,  and  saving  all  others  their  rights,  &c.  In  testi- 
mony whereof,  &c.  &c. 


No.  16.  (d.)   ' 
LETTERS  OF  ADMINISTRATION  de  bonis  nan. 

County,  ss. 

To  T.  E.  Esq.  of  the  borough  of        in  the  county  of        Greeting: 
Whereas  J.  M.  Esq,  late  register  for  the  probate  of  wills  and 
granting  letters  of  administration  in  and  for  the  said  county,  did 
on  the        day  of  duly  appoint  A.  B.  of  the  county  afore- 

said, gentleman,  administrator  of  all  and  singular  the  goods,  chat- 
tels, rights  and  credits,  which  were  of  C.  D.  late  of  the  said  county, 
yeoman,  deceased.  And  the  said  A.  B.  having  rendered  his  ac- 
count upon  the  estate  of  the  said  deceased  to  the  Orphan's  court 
of  the  county  aforesaid,  on  the  day  of  and  the  said 

court  upon  due  consideration  thereof  having  accepted  and  con- 
firmed the  same,  was,  upon  his  application  made  for  that  purpose, 
dismissed  and  exonerated  by  the  same  court  from  the  further  du- 
ties of  his  said  appointment.  Now  know  ye  that  I,  R.  H.  register 
for  the  probate  of  wills  and  granting  letters  of  administration  in 
and  for  said  county,  desiring  that  the  remainder  of  the  goods  and 
chattels,  rights  and  credits  of  the  said  deceased  may  be  well  and 
truly  administered,  converted  and  disposed  of  agreeably  to  the 
laws  and  usage  of  the  commonwealth  of  Do  hereby  grant  unto 
you  the  said  T.  E.  (in  whose  fidelity  in  this  behalf  I  very  much 
confide,)  full  power,  by  the  tenor  of  these  presents,  to  administer 
the  goods  and  chattels,  rights  and  credits  of  the  said  deceased, 
which  remain  unadministered  within  the  said  county,  as  also  to 
ask,  collect,  levy,  recover  and  receive  all  the  credits  whatsoever 
of  the  said  deceased,  which  remain  yet  unpaid,  and  to  pay  the 
debts  in  which  the  said  deceased  stood  obliged,  so  far  forth  as  the 
said  goods  and  chattels  will  extend,  according  to  the  rate  and 
order  of  law.  And  I  do  by  these  presents  ordain,  constitute  and 


xiv  APPENDIX. 

appoint  you  the,  said  T.  E.  administrator  as  aforesaid,  within  the 
limits  aforesaid,  saving  harmless  and  forever  indemnifying  me 
and  all  other  officers,  against  all  persons  whomsoever  by  reason 
of  your  said  administration  as  aforesaid,  and  saving  all  others 
their  rights.  In  testimony,  &c. 


No.  17. 
PETITION  FOR  ORDER  OF  SALE. 

Petition  for  an  order  of  sale  by  administrator  of  the  real  estate  of 

Intestate,  to  pay  dfebts  and  support  minor  children,  under  the 

act  1794. 

To  the  honorable  the  judges,  &c. 

The  petition  of  Philip  Moore  administrator  of  all  and  singular 
the  goods  and  chattels,  that  were  of  Samuel  Jones  deceased,  who 
died  intestate, 

Respectfully  represents,  that  the  said  intestate  died  on  the 
first  day  of  January,  A.  D.  1820,  leaving  a  wife  named  Mary, 
and  five  children,  viz:  James,  John,  Thomas,  Sarah,  and  Jane; 
all  minors,  and  seized  of  a  certain  three  story  brick  house,  situate 
in  High  street,  in  the  city  of  Philadelphia,  &c.  That  the  personal 
estate  of  said  intestate,  is  insufficient  to  pay  his  debts  arid  main- 
tain and  educate  his  minor  children,  as  appears  by  the  account,  in- 
ventory, and  appraisement,  and  schedule  herewith  presented:  Your 
petitioner  therefore  prays  that  the  court  will  order  that  the  said 
real  estate,  or  so  much  thereof  as  the  court  shall  deem  necessary 
to  be  sold  for  the  payment  of  the  debts,  and  maintenance  and 
education  of  the  said  minor  children.  And  he  will,  &c. 

No.  18. 
ORDER  OF  SALE. 

Order  of  sale  for  the  real  estate  of  an  intestate  for  the  payment 

of  debts  and  maintenance  of  minor  children. 
City  and  county  of  Philadelphia,  ss. 

At  an  Orphan's  Court,  held  at  Philadelphia,  for  the  city  and 
county  of  Philadelphia,  on  the  day  of  A.  D.  1820.  Before 
the  honourable  John  Hallowell  and  his  associates,  justices  of  said 
court, 

The  petition  of  Philip  Moore,  administrator  of  all,  etc.  of 
Samuel  Jones,  deceased,  was  presented,  setting  forth,  that  the 
said  decedent  died  intestate  on  the  first  day  of  January,  A.  D. 
1820;  leaving  a  widow  named  Mary,  and  five  children,  viz:  James, 
John,  Thomas,  Sarah  and  Jane,  all  minors,'  and  seized  of  the  fol- 
lowing described  real  estate,  viz:  All  that  certain  three  story 
brick  house  situate  in  High  street,  in  the  said  city,  &c.  That  the 
personal  estate  of  the  said  decedent  is  insufficient  to  pay  his  debts 
and  maintain  and  educate  his  minor  children,  as  appears  by  the 
account,  inventory  and  appraisement  and  schedule  filed  with  the 


APPENDIX.  xv 

said  petition.  And  praying  the  court  to  grant  an  order  for  the 
sale  of  the  said  real  estate  or  so'  much  thereof  as  the  court  shall 
deem  necessary,  for  the  payment  of  the  debts,  and  maintenance 
and  education  of  said  minor  children. 

Whereupon  the  court  or'der  and  direct  that  the  said  administrator 
expose  the  said  premises  to  public  sale  at  the  Merchants'  Coffee 
House,  in  the  said  city,  on  Tuesday,  the  day  of  A.  D. 

1820,  and  sell  the  same  for  the  best  price  that  can  be  had  there- 
for. Giving  due  public  and  timely  notice  of  the  time  and  place 
of  sale,  according  to  law,  antf  the  rule  of  the  said  court.  And 
that  the  said  administrator  make  a  return  of  his  proceedings 
herein,  to  the  next  stated  Orphan's  Court.  By  the  court. 

T.  F.  G.  Clerk. 

No,  19. 

ADVERTISEMENT. 

Pursuant  to  an  order  of  the  Orphan's  Court,  held  at  Philadel- 
phia, on  the  day  of  A.  D.  18 — . 

Will  be  exposed  to  public  sale,  on  the        day  of  at  the 

Merchants'  Coffee  House,  or,  (on  the  premises,)  all  that  (describe 
here  the  property.}  Terms  at  sale,  (or  if  it  be  thought  advisable 
the  terms  may  be  inserted  in  the  advertisement.)  By  the  court, 

E.  K.  Clerk. 

No.  20.  (a.) 

RETURN  TO  ORDER  OF  SALE. 

Return  of  administrator  to  order  of  sale,  where  the  estate  has 

been  sold. 

To  the  honourable  the  judges,  &c.  Philip  Moore,  administrator 
of  all  and  singular  the  goods  and  chattels,  which  were  of  Samuel 
Jones,  deceased,  Reports, 

That  pursuant  to  the  within  order  of  court,  he  did,  at  the  time 
and  place  therein  mentioned,  having  given  due  public  and  timely 
notice  of  the  time  and  place  of  the  sale,  expose  the  premises  therein 
described,  to  sale  by  public  vendue,  or  outcry,  and  sold  the  same 
to  John  Hill  of  the  county  of  Philadelphia,  Esq.  for  the  sum  of 
six  thousand  five  hundred  and  twenty-five  dollars,  he  being  the 
highest  and  best  bidder,  and  that  the  highest  price  bidden  for  the 
same:  And  he  respectfully  prays  that  the  sale  so  made  may  be  ^ 
confirmed  by  the  court.  fe'i»ned,  '  P.  MOORE. 

//'  the  return  b'e  not  endorsed  on  the  order  annexed  thereto,  it 
will  be  proper  to  describe  the  property  sold,  at  length,  in  the  return. 

No.  20.  (&.) 

BORDER  OF  THE  COURT  ON  THE  RETURN  OF  ADMIN- 
ISTRATOR OF  THE  SALE  OF  REAL  ESTATE. 

Whereupon  the  court  order  and  decree,  that  the  sale  so  made 


xvi  APPENDIX. 

be  ratified  and  confirmed,  and  that  the  premises  so  sold,  be  and 
remain  to  the  said  John  Hill,  his  heirs  and  assigns,  firm  and  stable 
forever. 

This  judgment  of  the  court  is  entered  on  the  record  immediate- 
ly after  the,  order- 

No  20.  (c.) 
RETURN  WHEN  NOT  SOLD. 

Return  of  administrator  to  order  of  sale,  where  no  sale  has  been 

effected. 

To  the  honourable,  &c.  Philip  Moore,  administrator  of  all,  etc. 
which  were  of  Samuel  Jones,  deceased,  Reports, 

That  pursuant  to  the  within  order  of  court,  he  did,  at  the  time 
and  place  therein  mentioned,  expose  the  within  described  premi- 
ses to  sale,  by  public  vendue  or  outcry.  But  the  same  remains  un- 
sold for  want  of  buyers,  and  he  prays  a  further  order  for  the  sale 
of  the  said  premises. 

No.  21. 

PETITION  FOR  AN  ORDER  OF  SALE  ON  THE  FINAL 
SET'W.EMENT  OF  THE  ACCOUNTS  OF  AN  ADMIN- 
ISTRATOR, OR  AN  EXECUTOR. 

To  the  honourable  the  judges  of  the  Orphan's  Court  for  the 
city  and  county  of  Philadelphia. 

The  petition  of  A.  B.  and  C.  D.  the  administrators  of  all,  etc. 
singular,  &c.  [or  executors  of  the  last  will  and  testament]  of  E. 
F.  deceased,  respectfully  represents, 

That  the  petitioners  have  made  a  final  settlement  of  their  ad- 
ministration accoupts,  which  has  been  confirmed  by  this  court,  and 
there  appears  to  be  a  balance  of  dollars  due,  and  owing  from 
the  estate  of  the  said  decedent,andthat  there  is  not  sufficient  assets 
to  pay  and  satisfy  the  same,  and  for  the  satisfaction  of  the  court  a 
copy  of  said  settlement,  together  with  a  schedule  of  the  debts  due 
and  unpaid,  by  the  estate  of  said  decedent,  is  herewith  presented. 
The  petitioners  pray  that  the  court  make  an  order  for  the  sale 
of  the  following  described  real  estate,  or  so  much  thereof  as  in  their 
opinion  shall  be  sufficient  to  satisfy  su,ch  balance.  [Insert  here 
description  of  the  estate.'}  And  they  will,  &c. 

No.  22. 

BOND  OF  ADMINISTRATOR,  ON  THE  SALE  OF  AN  IN- 
TESTATE'S REAL  ESTATE. 

Know  all  men  by  these  presents,  that  we  A.  B.  and  C.  of  the 

township  of  Lower  Dublin  and  county  of  Philadelphia,  are  held  and 

firmly  bound  to  the  commonwealth  of  Pennsylvania,  in  the  sum  of 

dollars,  lawful  money  of  Pennsylvania,  to  be  paid  to.  the 

said  commonwealth:     To  which  payment  well  and  truly  to  be 


APPENDIX.  xvii 

made,  we  do  bind  ourselves,  our  heirs,  executors,  and  administra- 
tors, jointly  and  severally,  sealed  with  our  seals,  this         day  of 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
twenty. 

The  condition  of  the  above  obligation  is  such,  that  it'  the  above 
bounden  A.  administrator  of,  etc.  shall  faithfully  execute  the 
powers  committed  to  him,  by  the  Orphan's  Court,  of  the  city  and 
county  of  Philadelphia,  for  selling  the  real  estate  of  said  decedent, 
and  shall  truly  account  for,  and  pay  over  the  proceeds  of  such 
sale,  in  such  manner  as  the  said  court  shall  legally  decree,  then 
the  above  obligation  to  be  void,  or  else  to  remain  in  full  force  and 
virtue. 

No.  23. 
PETITION  FOR  PARTITION. 

To  the  honourable  the  judges,  etc. 

The  petition  of  Sarah  Wilkins,  widow  of  James  Wilkins,  deceas- 
ed, and  of  John,  Samuel,  and  William,  sons  of  the  said  decedent, 
above  the  age  of  twenty-one  years,  Jonathan  Jones,  and  Mary  his 
wife,  (late  Mary  Wilkins,)  Samuel  Grant,  and  Ann  his  wife,  (late 
Ann  Wilkins,)  Reuben,  and  Benjamin  Wilkins,  minors  by  their 
guardian  Joseph  Brown,  respectfully  represents,  that,* 

The  said  James  Wilkins  died  intestate,  on  or  about  the  17th 
day  of  April,  1819,  leaving  a  widow,  the  above  named  petitioner, 
ard  issue,  seven  children,  viz:  John,  Samuel,  William,  Mary,  who 
intermarried  with  Jonathan  Jones,  Ann,  who  intermarried  with 
Samuel  Grant,  and  Reuben  and  Benjamin  who  are  minors,  and 
seized  in  his  demesne,  as  of  fee  of  and  in  the  following  described 
real  estate,  [insert  here  the  description  of  the  estate^]  No  petition 
or  valuation  of  the  said  estate  having  been  had,  the  petitioners 
pray  the  court,  to  order  and  appoint  A.  B  C.  D.  E.  F.  G.  chosen 
by  the  petitioners  for  that  purpose  to  make  partition  or  valuation 
of  the  said  premises,  according  to  the  acts  of  assembly  in  such 
case  made  and  provided,  and  to  make  report  of  their  proceedings 
herein,  at  the  next  Orphan's  Court,  after  they  shall  have  so  parted 
or  valued  the  same.  And  they  will,  etc. 


No.  24. 
ORDER  FOR  PARTITION. 

City  and  County  of  Philadelphia,  ss. 

At  an  Orphan's  Court  held  at  Philadelphia,  for  the  city  and 
county  of  Philadelphia,  on  the  1 6th  day  oi  July,  A.  D.  1819,  be- 
fore the  Hon.  Jacob  Rush  and  his  associate  justices,  &c. 

Th«  petition  of  Surah  Wilkins,  widow  of  James  Wilkins, 
deceased;  and  of  John,  Samuel,  and  William,  sons  of  the  said  de- 
cedent above  the  age  of  twenty-one  years,  Jonathan  Jones  and 
Mary  his  wife,  late  Mary  Wilkins,  Samuel  Grant  and  Ann  his 

3 


xviii  APPENMX. 

wife,  late  Ann  Wilkins,  and  of  Ri-ubcu  and  Benjamin  Wilkins, 
minors,  by  their  guardian  Joseph  Brown,  was  presented,  setting 
forth  that  the  said  James  Wilkins  died  intestate,  leaving  issue  se- 
ven children,  as  named  in  the  petition,  and  seized  as  of  fee  of, 
and  in  a  certain  messuage  or  tenement,  situate  [here  describe 
the  property:^  with  the  appurtenances:  That  partition  or  valua- 
tion of  the  said  premises  has  not  been  made;  and  praying  the  court 
to  appoint  and  order  [seven  persons,  chosen  by  the  petitioners  for 
that  purpose,^  to  make  partition  or  valuation  of  the  premises,  and 
make  report  thereof  according  to  law:  and  the  persons  aforesaid 
are  appointed  by  the  court  for  the  purposes  aforesaid,  and  are 
hereby  authorized  and  empowered  to  go  to  the  premises  aforesaid, 
and  in  the  presence  of  said  parties,  or  their  legal  representatives, 
they  having  been  severally  warned,  if  upon  being  warned  they  will 
be  present,  having  respect  to  the  true  value  thereof,  that  they  in- 
quire whether  the  said  premises  with  the  appurtenances  can  conve- 
niently be  parted  and  divided  so  as  to  accommodate  the  widow  and 
all  the  children  and  legal  representatives  of  said  decedent,  with- 
out'prejudice  to  or  spoiling  the  whole,  and  if  they  can,  that  then 
they  part  and  divide  the  same  accordingly:  But  if  such  partition 
cannot  be  made  as  aforesaid,  that  they  then  inquire  whether  the 
said  premises  will  conveniently  accomodate  more  than  one  of  the 
said  children,  [or  legal  representatives,]]  without  prejudice  to  or 
spoiling  the  whole,  and  if  so,  how  many  of  them  the  same  will  ac- 
commodate, and  that  they  part  or  divide  the  same  accordingly;  des- 
cribing each  part  by  metes  and  bounds,  and  returning  a  just  valua- 
tion of  the  same:  But  if  they  should  be  of  opinion,  that  the  pre- 
mises aforesaid,  with  the  appurtenances,  cannot  be  so  parted  and 
divided,  as  to  accommodate  the  widow  and  all  the  children, and  le- 
gal representatives  of  said  intestate,  nor  accommodate  more  than 
one  of  them,  that  they  value  and  appraise  the  same  with  the  appur- 
tenances agreeably  to  law:  That  they  ascertain  the  widow's  interr 
est  therein  and  in  each  purpart,  if  divided,  and  make  report  to  the 
next  Orphan's  Court,  alter  they  shall  have  parted  or  valued  the 
same. 

By  the  Court, 

T.  F.  G.  Clk. 


No.  25. 
PETITION  FOR  INQUEST. 

To  the  Hon:  the  Judges  of  the  Orphan's  Court,  &c. 

The  petition  of  George  Fox,  of  the  county  of  Philadelphia 
Respectfully  represents, 

That  Ann  Graham,  formerly  Ann  Rambo,  late  of  Lower  Dub- 
lin township,  in  the  county  aforesaid,  died  intestate,  a  widow  and 
without  issue,  leaving  sisters,  and  the  children  of  one  brother  and 


APPENDIX.  xix 

one  sister:  viz:  Elizabeth  intermarried  with  Isaac  Worrell,  Debo- 
ra'i  Rambo  and  Martha  Rambo,  Mary  Woodfield  intermarried  with 
George  Fox  the  petitioner,  and  Christian  Woodfield,  children  of 
Thomas  Woodfield,  only  child  of  Mary  Woodfield,  formerly  Mary 
Rambo,  Elias  Rambo  now  abseift  from  this  state,  Grace  Swain  in- 
termarried with  Samuel  Swain,  also  absent  from  this  state,  and 
Mary  Rambo,  children  of  Peter  Rambo  deceased:  and  seized  in 
her  demesne  as  of  fee  pf  a  certain  tract  of  land,  containing  twen- 
ty acres  and  a  quarter,-  or  thereabouts,  with  the  appurtenances  si- 
tuate on  the  Bristol  road  in  Lower  Dublin  Township,  Philadelphia 
County,  adjoining  lands  of  William  Foster  and  Deborah,  and  Mar- 
tha Rambo  aforesaid,  being  the  same  premises  which  on  a'partition. 
of  the  estate  of  the  said  Deborah  and  Martha  Kambo,  and  Ann 
Graham,  was  allotted  to  the  said  Ann. 

The  petitioner,  therefore,  prays  the  court  to  award  an  inquest 
to  make  partition  of  the  premises  aforesaid,  to  and  among  the  re- 
presentatives of  the  said  intestate,  in  such  manner  and  in  such 
proportions,  as  by  the  laws  of  this  commonwealth  is  directed,  if 
such  partition  can  be  made  without  prejudice  to  or  spoiling  of  the 
whole,  but  if  such  partition  cannot  be  so  made  thereof,  then  to  va- 
lue and  appraise  the  same,  and  make  a  return  of  their  proceeding 
according  to  law. 

And  he  will,  &c.  „ 

G.  F. 


No.  26. 
WRIT  FOR  PARTITION. 

City  and  county  of  Philadelphia,  ss. 

The  commonwealth  of  Pennsylvania,  to  the  sheriff  of  the  said 
city  and  county,  greeting: 

Whereas,  at  an  Orphan's  Court  held  at  Philadelphia,  in  'and  for 
the  city  and  county  aforesaid,  on  the  15th  day  of  October,  A.  D. 
1819,  before  the  honourable  Jacob  Rush,  George  Morton,  and 
Hugh  Ferguson,  justices  of  said  court, 

The  petition  of  George  Fox  was  presented,  setting  forth  that 
Ann  Graham,  formerly  Ann  Rambo,  late  of  Lower  Doublin  town- 
ship, Philadelphia  county,  died  intestate,  seized  of  a  certain  tract 
of  land  containing  twenty  acres,  and  a  quarter,  or  thereabouts, 
with  the  appurtenances,  situate  "on  the  Bristol  road,  [describe  the 
property.~]  Leaving  neither  husband,  father  or  mother,  or  lawful 
issue,  butj^aving  sisters,  and  the  children  of  one  brother,  and  one 
sister,  viz:  Elizabeth  Worrall,  wife  of  Isaac  Worrall,  Deborah  Ram- 
bo, and  Martha  Rambo,  Mary  Woodfield,  now  intermarried  with 
George  Fox,  and  Christian  Woodfield,  children  of  Thomas  Wood- 
field,  only  child  of  Mary  Woodfield,  formerly  Mary  Rambo,  Elias 


xx  APPENDIX. 

Rambo,  now  absent  from  this  state,  Grace  Swain,  intermarried  with 
Samuel  Swain, also  absentfrom  this  state,  and  Mary  Rambo,  children 
of  Peter  Rambo,  deceased,  and  praying  the  courtto  award  an  inquest 
to  make  partition,  or  valuation  of  the  said  premises,  to  and  among 
the  heirs  and  representatives  t  f  the  said  decedent,  according  to 
the  acts  of  assembly,  in  such  case  made  and  provided. 

We  therefore  command  you,  that  taking  with  you  twelve  free 
and  lawful  men  of  your  bailiwick,  you  go  .to,  and  upon  the  pre- 
mises aforesaid,  and  there  by  their  oaths  or  affirmations,  that  you 
make  partition  thereof  to  and  among  the  children  and  representa- 
tives of  the  sard  intestate,  in  such  manner  and  in  such  proportions, 
as  by  the  laws  of  this  commonwealth  are  directed,  if  such  parti- 
tion can  be  made  without  prejudice  to  or  spoiling  the  whole:  but 
if  such  partition  cannot  be  made  thereof  as  aforesaid,  that  then  you 
value  and  appraise  the  same  according  to  law:  And  further,  that 
you  cause  the  said  inquest  to  inquire  and  ascertain,  whether  the 
said  real  estate,  with  the  appurtenances  will  conveniently  accom- 
modate more  than  one  of  the  children,  or  i-epresentatives  of  the 
said  intestate,  and  if  so,  how  many  of  the  said  children  or  repre- 
sentatives it  will  conveniently  accommodate:  That  due  notice  of 
the  time  of  making  such  partition  or  valuation,  be  given  to  all  the 
parties  interested,  and  that  you  make  return  of  your  proceedings 
herein  to  the  next  general  Orphan's  Court.  Witness,  etc. 

No.  27. 
RETURN  TO  ORDER  OF  PARTITION.  &c. 

To  the  lion:  the  Judges  of  the  Orphan's  Court,  for  the  city  and 
county  of  Philadelphia: 

We  the  subscribers,  appointed  by  the  annexed  order  of  court,  to 
make  partition  of  the  real  estate  therein  mentioned,  whereof  J.K. 
therein  named,  died  seized,  if  such  partition  could  be  made  with- 
out prejudice  to  or  spoiling  the  whole,  otherwise,  to  value*  and  ap- 
praise the  same:  Do  report,  that  in  pursuance  of  the  said  order,  we 
have-  viewed  the  premises  within  described,  situate  in  the  North- 
ern Liberties  of  the  city  of  Philadelphia,  and  finding  that  the  same 
could  not  be  parted  and  divided,  to  and  among  all  the  parties  in 
the  annexed  order  mentioned,  without  prejudice  to  or  spoiling  the 
whole,  have  valued  and  appraised  the  same  as  followeth,  to  wit: 

No.  [.  All  that  mansion  house,  and  lot,  &c.  and  also  a  certain 
barn,  carriage-house,  and  lot,  &c.  [describing1  the  premises  by 
courses  and  distance,  boundaries,  #c.  as  in  u  deed.~]  We  have  va- 
lued and  appraised,  at  the  sum  of  five  thousand  five  hundred  dol- 
lars. No.  2.  All  that  stone  house  and  lot  of  ground,  situate  &c:  Al- 
so a  certain  lot  or  piece  of  ground  situate  [describe  particularly  as 
above:^  also  two  contiguous  lots,  &c.  also,  a  certain  yearly  ground 
rent,  &c.  We  have  valued  and  appraised  at  the  sum  of  five  thou- 
sand five  hundred  dollars. 


APPENDIX.  xxi 

No.  3.  All  that  frame  messuage  or  tenement,  or  stone  store- 
house; and  tract  or  piece  of  land  thereunto  belonging,  &c.  we  have 
valued  and  appraised  at  the  sum  of  seven  thousand  dollars. 

No.  4.  All  that  lot  and  piece  of  ground,  situate  on  the  eastern 
side  of  Garden  Street,  &c.  also  two  contiguous  lots,  &c.  Also  a 
certain  yearly  ground  rent  of  forty-two  dollars,  issuing  out  of,  &c. 
we  have  valued  and  appraised  at  the  sum  of  four  thousand  and 
six  hundred  and  seven  dollars. 

No.  5.  All  that  tavern  and  stable  and  bridge  erected,  &c.  and 
two  lots  or  pieces  of  l;ind,  we  value  and  appraise  at  the  sum  of 
nine  thousand  five  hundred  dollars. 

No.  6.  All  that  certain  lot  or  piece  of  ground,  &c.  we  have  ap- 
praised, and  valued  with  the  consent  and  approbation  of  thfi  par- 
ties concerned,  at  the  sum  of  one  hundred  dollars. 

Witness  our  hands  and  seals  this  day  of 

anno  Domini  1819. 

Signed 

AB. 

CD. 

EF. 

GH. 

IJ. 

KL. 

MN. 


No.  28. 

RETURN  'TO   ORDER   WHERE  PROPERTY   IS   DI- 
VIDED. 

To  the  Hon:  the.  Judges  of  the  Orphan's  Court,  &c. 

We,  W,  K,  J,  B,  &c.  appointed  by  order  of  the  Orphan's  Court, 
on  the  day  of  A.  D.  1819,  to  make  partition  of  all  that 

tract  of  meadow  land,  &c.  situate  in  Kingsessing  township,  Phila- 
delphia county,  late  the  estate  of  Justis  Cox:  Report, 

That  on  the  day  of  we  went  to  the  premises, 

and  there  in  the  presence  of  the  parties  interested,  having  due 
respect  to  the  value  thereof,  did  inquire  and  find,  that,  the  premi- 
ses aforesaid,  with  their  appurtenances  can  be  conveniently  part- 
ed and  divided,  so  as  to  accommodate  the  children  of  said  in- 
testate, without  prejudice  to  or  spoiling  the  whole;  and  have 
divided  the  same  in  manner  following,  to  wit:  No.  1.  marsh  mea- 
dow land,  beginning,  etc.  And  a  lot  of  wood  land  on  the  island 
road,  beginning,  etc.  The  aforesaid  described  property,  constitu- 
ting one  entire  share  we  assign  to  Gustavus  A.  Cox. 

No  2.  Marsh  land,  beginning,  etc.  also  a  lot  of  woodland,  be- 
ginning, etc.  constituting  one  entire  share  we  assign  to  Ann  Cox, 


xxii  APPENDIX. 

No.  3.  Mansion  place,  beginning  at  a  stone  being  a  corner  of 
John  Hunt's  land,  etc.  Also  a  lot  of  wood  land,  beginning,  etc. 
constituting  one  entire  share,  we  assign  to  Eliza  Cox. 

No.  4.  Beginning  at  a  stone,  etc.  being  a  corner  of  Mansion 
place,  etc.  Constituting  one  share  we  assign  to  Justis  Cox. 

And  we  do  estimate  the  value  of  the  widow's  part  or  third,  in 
the  said  premises  at  the  sum  of  five  thousand  eight  hundred  and 
thirty-three  dollars  and  thirty -three  cents,  which  we  apportion  as 
follows.  One  equal  fourth  part  amounting  to  one  thousand  four 
hundred  dollars  and  fifty-eight  dollars  and  thirty- three  cents  and 
one  third,  on  the  portion  allotted  to  Gustavus  Cox.  [and  so  with 
the  other  portions  as  in  JVo.  31.] 

Thus  we  have  parted  and  divided  the  several  tracts  of  land 
mentioned  and  referred  to  in  the  said  order,  amongst  the  children 
of  said  Justis  Cox,  and  made  a  just  allowance  to  his  widow  for 
her  dower,  so  that  neither  of  the  parties  interested  have  more 
than  their  respective  shares,  nor  more  than  of  right  to  them  respec- 
tively belongs.  In  witness,  etc. 
Signed. 


No.  29. 

RETURN  TO  AN  ORDER  OF  THE  PARTITION  WHERE 
THE  ESTATE  CANNOT  BE  DIVIDED. 

To  the  honorable,  etc. 

We  the  undersigned  A.  B.  C.  D.  E.  F.  G.  appointed  by  order 
of  the  court,  on  the  day  of  A.  D.  1819,  to  make 

partition  or  valuation  of  the  estate,  in  said  order  described,  late  of 
Samuel  Jones,  deceased,  report, 

That,  on  the  day  of  we  went  upon  the  premises, 

having  given  due  and  timely  notice  to  the  parties  mentioned  in 
said  order,  and  as  many  as  chose  being  present.  And  find  that 
the  premises  as  described  in  the  said  order,  cannot  be  parted 
and  divided  without  injury  to  or  spoiling  the  whole.  We  have 
therefore  valued  and  appraised  the  same,  at  the  sum  of 
thousand  dollars. 

Given  under  our  hands  and  seals,  this  day  of 

Signed. 


No.  SO. 

SHERIFF'S  RETURN  TO  WRIT  OF  PARTITON.  WttERE 
THE  ESTATE  CANNOT  BE  DIVIDED. 


County  of  Philadelphia,  ss. 

I,  Caleb  North,  Esq.  high  sheriff 


:'of  the  county  of  Philadelphia, 


APPENDIX;  xxiit 

to  the  judges  of  the  said  county,  in  the  writ  to  this  schedule 
annexed  mentioned  do  certify,  That  by  virtue  of  the  said  writ 
to  me  directed,  on  the  14th  day  of  December,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  nineteen,  taking  with  me 
the  jurors  whose  names  and  seals  are  hereunto  annexed,  good  and 
lawful  men  of  my  bailiwick,  I  went  in  my  .proper  person  to  the 
premises  mentioned  in  said  writ,  the  parties  in  the  same  being 
severally  warned,  and  as  many  as  chose  being  present;  and  the 
good  and  lawful  men  aforesaid,  upon  their  oaths  and  affirmations, 
respectively  do  say  that  the  property,  as  mentioned  in  said  writ, 
cannot  be  parted  and  divided  without  prejudice  to,  or  spoiling  the 
whoje.  Therefore  they  appraise  and  value  the  same  at  the  sum  of 
one  thousand  dollars. 

In  testimony  whereof,  as  well  I  the  said  sheriff,  as  the  inquest 
aforesaid,  have  hereto  set  our  hands  and  seals  the  day  and  year 
above  written. 

CALEB  NORTH,  Sheriff. 
Signed  by  the  twelve  jurors. 


No.  31. 

RETURN  OF  SHERIFF  TO  THE  WRIT  OF  PARTITION, 
WHERE  ESTATE  CAN  BE  DIVIDED. 

I,  Thomas  Truxtun,  Esquire,  high  sheriff  of  the  county  of  Phila- 
delphia, to  the  judges  of  the  said  county  in  the  writ  to  this  sche- 
dule annexed  mentioned,  do  certify,  that  by  virtue  of  the  said 
writ  to  me  directed,  on  the  17th  day  of  June,  in  the  year  of  OUP 
Lord  one  thousand  eight  hundred  and  nineteen;  taking  with  me 
the  jurors,  whose  names  and  seals  are  hereunto  annexed,  good 
and  lawful  men  of  my  bailiwick,  I  went  in  proper  person  to  the 
premises  mentioned  in  said  writ,  the  parties  in  the  same  being 
severally  warned,  and  as  many  as  chose  being  present:  And  the 
good  and  lawful  men  aforesaid,  on  their  oaths  and  affirmations 
respectively,  do  say,  That  the  property  as  mentioned  in  said  writ, 
can  be  parted  and  divided  without  prejudice  to,  or  spoiling  the 
whole,  therefore  do  divide  and  allot  the  same  in  the  manner  fol- 
lowing, viz.  To  Gustavus  Cox,  the  two  parts  or  pieces  of  land, 
in  the  annexed  draught  marked  No.  1. — \_Here  describe  the  land."] 
Containing,  etc.  To  Ann  Cox,  the  two  parts  or  pieces  of  land, 
No.  2.  beginning,  etc:  To  Elizabeth  Cox,  the  two  parts  or  pieces 
of  land,  No.  3.  beginning,  etc:  And  to  Justis  Cox,  two  pieces 
of  land,  No.  4.  beginning,  etc. 

And  we  do  estimate  the  value  of  the  widow's  part  or  third,  in 
the  said  premises,  at  the  sum  of  five  thousand  eight  hundred  and 
thirty -three  dollars  and  thirty-three  cents  and  one  third  of  a  cent, 
which  we  apportion  as  follows: 

One  equal  fourth  part,  amounting  to  one  thousand  four  hundred 


APPENDIX. 

and  fifty  eight  dollars  and  thirty-three  cents  and  one-third,  on  the 
parts  or  pieces  allotted  to  Gustavus  A.  Cox. 

One  equal  fourth  part,  amounting  to  one  thousand  four  hundred 
and  fifty-eight  dollars  and  thirty-three  cents  and  one-third,  on 
the  parts  or  pieces  allotted  to  Ann  Cox. 

One  other  equal  fourth  part  thereof,  amounting  to  one  thousand 
four  hundred  and  fifty-eight  dollars  and  thirty-three  cents  and 
one-third,  on  the  parts  or  pieces  allotted  to  Elizabeth  Cox. 

And  the  other  equal  fourth  part  thereof,  amounting  to  one  thou- 
sand four  hundred  and  fifty-eight  dollars  and  thirty-three  cents 
and  one-third,  on  the  parts  or  pieces  allotted  to  Justis  Cox. 

In  witness  whereof,  I,  the  said  sheriff',  and  the  jurors  aforesaid, 
have  hereunto  set  our  hands  and  seals,  this  18th  day  of  July,  A. 
D.  1819. 


No.  32. 

BOND  TO  SECURE  THE  PAYMENT  OF  THE  PURPART, 
AND  DIVIDEND  OF  THE  ESTATE  OF  AN  INTESTATE, 
TO  THE  HEIRS,  &c. 

Know  all  men  by  these  presents,  that  I,  A.  B.  am  held  and 
firmly  bound  unto  C.  B.  in  the  sum  of  thousand  dollars, 

lawful  money  of  Pennsylvania,  to  be  paid  to  the  said  C.  B.  his 
certain  attorney,  executors,  administrators,  and  assigns,  to  which 
payment  well  and  truly  to  be  made,  I  do  bind  myself,  my  heirs, 
executors,  and  administrators,  firmly  by  these  presents,  dated  the 
day  of  in  the  year  of  our  Lord  one  thousand  eight 

hundred  and  twenty. 

Whereas  such  proceedings  were  had  on  the  day  of 
A.  D.  1820,  and  at  other  days  and  times  in  the  Orphan's  Court, 
of  the  city  and  county  of  Philadelphia,  relating  to  the  real  estate 
of  W.  B.  deceased;  that  an  inquest  awarded  by  the  court,  divid- 
ed the  said  estate,  and  made  valuation  of  the  same  in  the  manner 
and  form  following:  [Here  state  briefly,  but  clearly,  the  division 
and  valuation  of  the  estate.']  And  further  that  the  return  of  said 
inquest  was  confirmed  by  the  court,  and  the  portion  allotted 
thereby  to  the  said  A.  B.  was  adjudged  to  him  by  the  court,  on 
his  giving  bond,  secured  by  mortgages  on  the  premises,  for  the 
payment  of  the  shares  and  dividends  of  the  children  and  repre- 
sentatives of  the  said  decedent,  to  hold  to  him  the  said  A  B.  his 
heirs  and  assigns  forever. 

Now  the  condition  of  this  'obligation  is  such,  that  if  the  above 
bounden  A.  B.  his  heirs,  executors,  administrators,  or  assigns,  or 
any  of  them,  shall  well  and  truly  pay  or  cause  to  be  paid  to  the 
said  C.B.his  certain  attorney,  executors,  administrators,  or  assigns, 
or  any  of  them,  the  just  and  full  sum  of  dollars,  within  twelve 
months  from  the  said  day  of  A.  D.  1820,  together 

with  the  interest  thereon,  and  tfie  further  sum  of        immediately 


APPENDIX.  xxv 

on  the  death  of  C.  B.  the  widow  of  said  decedent,  [which  sum  is 
part  of  her  dower  or  thirds,  in  the  said  estate,]  without  fraud  or 
further  delay,  then  this  obligation  to  be  void  and  of  none  eftect, 
otherwise  to  be  and  remain  in  full  force  and  virtue. 

Sealed  and  delivered  in  the  presence  of  A.  B.  [Seal.] 

N.  B.  If  there  be  no  widow,  or  the  estate  in  any  way  be  released 
from  the  dower,  the  condition  of  the  bond  relative  to  the  widow's 
thirds  is  of  course  not  inserted. 


No.  33. 

PETITION  FOR  A  RULE  UPON  THE  HEIRS  AND  REPRESEN- 
TATIVES OF  AN  INTESTATE,  TO  COME  IN  AND  TAKE  THE 
ESTATE  AT  THE  VALUATION,  &c.  OR  SHEW  CAUSE  WHY 
THE  SAME  SHOULD  NOT  BE  SOLD. 

To  the  honourable  John  Hallowell,  and  his  associates,  justices 
of  the  Orphan's  Court,  of  the  city  and  county  of  Philadelphia, 

The  petition  of  A.  B.  one  of  the  heirs  of  C.  B.  deceased,  who 
died  intestate,  respectfully  represents, 

That  the  inquest  appointed  by  this  court,  on  the  day  of 

to  make  partition  or  valuation  of  the  real  estate  of  said 
decedent,  have  returned  that  the  said  premises  cannot  be  divided, 
so  as  to  accommodate  all  the  heirs  of  said  decedent,  but  that  the 
same  maybe  parted  and  divided,  so  as  to  accommodate  some  of  the 
heirs  of  said  decedent,  and  they  have  parted  the  same  accordingly; 
the  petitioner  therefore  prays  the  court  will  grant  a  rule  upon  the 
heirs  and  representatives  of  said  decedent,  requiring  them  to  be 
and  appear  at  the  stated  Orphan's  Court  in  next,  then 

and  there  to  accept  or  refuse  the  said  estate,  at  the  valuation 
thereof:  and  in  case  all  the  heirs  and  representatives  refuse  so  to 
take  the  same,  then  to  shew  cause,  if  any  they  have,  why  the  said 
premises  should  not  be  sold,  according  to  the  act  of  assembly  in 
such  case  made  and  provided. 

And  he  will,  etc.  A.  B. 

Note.  In  fixing  the  return  day  of  the  rule  care  must  be  taken 
that  sufficient  time  be  allowed  to  give  the  notice  allowed  by  law. 
The  time  between  the  terms  in  the  county  of  Philadelphia  is 
scarcely  sufficient,  where  any  of  the  heirs  reside  out  of  the  county. 
It  is  therefore  advisable,  to  make  the  rule  returnable  to  the  next 
court  day  but  one. 

No.  34. 

RULE  ON  THE  HEIRS  OF,  &c.  TO  ACCEPT  OR  REFUSE, 
&c.  OR  SHEW  CAUSE  WHY  ESTATE  SHOULD  NOT 
BE  SOLD. 

City  and  county  of  Philadelphia,  ss. 

4 


xx  vi  APPENDIX. 

I  certi  fy,  that  at  an  Orphan's  Court  held  at  Philadelphia,  for 
the  city  and  county  aforesaid,  on  the  day  of  Anno 

Domini,  1820,     Before  the  honourable  the  judges  unsaid  co;irt; 

On  the  petition  of  A.  B.  one  of  the  heirs  of  C.  B.  deceased,  a 
rulf  was  granted  on  the  heirs  and  representatives  of  said  dece- 
dent, to  come  into  court  on  the  day  of  A.  D.  1820, 
to  accept  or  refuse  the  estate  of  said  decedent,  at  the  valualion 
made  thereof:  and  in  case  they  shall  refuse  to  accept  the  same, 
to  shew  cause,  if  any  they  have,  why  the  same  should  not  be  sold. 

In  testimony  whereof  I  have  hereunto  set  my  hand  and  seal  of 
office,  this  day  of  A.  D.  1820. 

T.  F.  G.  Clerk. 


No.  35. 

ACCEPTANCE  OF  THE  ESTATE  BY  THE  ELDEST  SON, 
(OR  OTHER  SON,  &c.) 

Whereas,  by  virtue  of  'certain  proceedings  of  the  Orphan's 
Court  of  the  city  and  county  of  Philadelphia,  partition  was  had, 
of  the  real  estate,  late  of  John  Jones,  who  died  intestate,  and  the 
said  estate  was  divided  into  purparts  or  shares,  and  the  same 
talued  as  set  forth  in  the  return  of  the  order,  (or  inquest,) 
as  made  to  this  court,  on  the  day  of  A.  D.  1820. 

Now  1,  Samuel  Jones,  eldest  son  and  heir  of  the  said  decedent, 
do  hereby  elect  to  take  the  premises  marked,  numbered  (1.)  in 
the  said  return,  and  described  as  follows:  [Insert  here  the  des- 
eription,~]  at  the  valuation  thereof. 

In  witness  whereof,  I  have  hereunto  set  my  harifl  and  seal, 
day  of  A.  D.I  820. 


No.  36. 

REFUSAL  TO  TAKE  THE  ESTATE  AT  VALUATION. 

FThe  inducement,  as  in  the  former  precedent.] 

Now  I,  Samuel  Jones,  eldest  son  of  said  decedent,  do  hereby 

decline  and  refuse,  to  take  any,  or  either  of  the  parts  or  shares  of 

said  estate,  at  the  valuation  thereof. 
In  witness,  &c. 

No.  3f. 

POWER  OF  ATTORNEY.  FROM  THE  HEIRS  OF  AN  IN- 
TESTATE  TO  REFUSE,  &c. 

Know  all  men  by  these  presents,  that  we,  Samuel  Jones,  Sarah 
Jones  and  Thomas  Jones,  by  his  guardian  William  Hood, and  Samuel 
Small,  and  Lydia  his  wife,  late  Lydia  Jones,  have  constituted  and 


APPENDIX.  xxvii 

appointed,  and  bj  these  presents  do  constitute  and  appoint,  Moses 
Root,  our  attorney,  in  fact,  for  us  and  in  our  names  to  appear  before 
the  Orphan's  Court  of  the  city  and  county  of  Philadelphia,  to  be 
holden  on  the  day  of  "  A.  D.  1820;  qr  at  any  subse- 

quent time,  and  for  us  and  in  our  names  to  refuse  to  accept  the 
real  estate  of  John  Jones  deceased,  at  the  valuation  made  thereof, 
iu  the  return  of  the  inquest  to  the  said  court,  on  the  day  of 

A.  D.  1 820,  and  to  pray  the  said  court  to  decree  that 
the  same  may  be  sold,  &c. 
In  testimony,  &c. 


No.  38.  (a) 
DECLARATION  OF  ATTORNEY  IN  FACT,  &c. 

Be  it  known  that  I,  Moses  Root,  of  the  county  of  having 

been  duly  constituted  and  appointed  attorney  in  fact,  of  Samuel 
Jones,  Sarah  Jones,  Thomas  Jones,  of  Samuel  Small  and  Lyclia 
his  wife,  late  Lydia  Jones,  for  them,  and  in  4heir  names  to  appear 
before  the  Orphan's  Court,  of  the  city  and  county  of  Philadelphia, 
to  be  holden  on  the  day  of  A.  D..  1820;  or  at  any 

subsequent  time,  and  to  refuse  to  accept  the  real  estate  of  John 
Jones,  deceased,  at  the  valuation  made  thereof,  and  to  pray  the 
court  to  decree  that  the  same  may  be  sold. 

Now  I,  the  said  Moses  Root,  for  and  in  behalf  of  my  said  con* 
stituents,  do  hereby  refuse  to  take  the  said  estate,  or  any  part 
thereof,  at  the  said  valuation,  and  pray  that  such  refusal  may  be 
entered  on  record  in  this  court,  and  that  the  court  will  decree 
that  the  said  estate  may  be  sold  according  to  law. 

In  testimony,  &c. 


No.  38.  (6) 

CONFIRMATION. 

At  an  Orphan's  Court,  &c.  J.  W.  Esq.  high  sheriff  of  the  county 
of  made  return  of  a  writ  to  him  directed,  returnable  on  the 

day  of  commanding  him  to  summon  an  inquest  to 

make  partition  of  the  real  estate  therein  mentioned,  whereof  A. 
B.  the  intestate  therein  named  lately  died  seized,  to  and  among 
the  children  and  representatives  of  the  said  deceased,  according 
to  law,  if  such  partition  could  be  made  without  prejudice  to  or 
spoiling  the  whole  thereof;  otherwise  to  value  and  appraise  the 
same  and  make  return  accordingly.  Which  return  being  read 
and  heard  is  in  the  words  following,  to  wit:  "To  the  judges  with- 
in gamed,  &c."  [as  in  ra^ff]  Whereupon  the  said  return  and 
Valuation  are  confirmed,  and  it  is  considered  and  adjudged  by  the 
court  here  that  B.  B.  eldest  son  and  heir  at  law  of  the  said  A.  B- 


xxviii  APPENDIX. 

deceased,  shall  and  may  upon  paying  or  securing:  to  be  paid  unto 
the  other  children  and  representatives  of  the  said  deceased  their 
eq'ial  and  proportionable  parts  of  and  in  the  valuation  aforesaid, 
within  twelve  months  from  this  time,  hold  and  enjoy  the  real 
estate  of  the  sa^d  deceased,  valued  as  aforesaid,  to  him,  his  heirs 
and  assigns  forever,  as  fully  and  freely  as  his  said  father  had  and 
held  the  same  in  his  life-time,  agreeably  to  the  acts  of  general  as- 
sembly i'i  such  case  made  and  provided.  And  the  said  B.  B.  of- 
fering to  the  court  C.  D.  and  K.  F.  as  sureties,  for  the  payment  of 
the  shares  and  dividends  aforesaid,  the  court  here  do  approve  of 
and  accept  the  said  sureties. 

If  the  eldest  son  refuses,  sav.  "And  the  said  return  and  valua- 
tion at  e  confirmed,  and  B.  B.  eldest  son  of  the  said  A.  B.  deceased, 
appearing  in  court,  refuses  to  take  the  real  estate  of  the  said  de- 
ceased at  the  valuation  thereof  made  as  aforesaid,  whereupon  it  is 
considered,  etc.  that  H.  B.  second  son,  or  eldest  daughter,  etc." 

If  no  confirmation  takes  place  immediately,  say,  "  And  the  said 
return  is  continued  under  advisement,  till  the  next  Orphan's 
Court  to  be  held  for  this  county/'  Or,  "And  the  same  is  ordered 
to  be  filed." 

Then  enter  the  confirmation  thus:  "The  court  do  now  confirm 
the  valuation  of  the  real  estate  of  A.  B.  deceased,  according  to 
the  return  of  the  sheriff,  made  the  day  of,  etc.  last  past,  and 

it  is  considered  and  adjudged  by  the  court  that  the  same  be  and 
remain  firm  and  stable  forever. 

If  one  of  the  sureties  declines,  say,  "E.  F.  who  was  lately  ap- 
proved by  the  court  as  one  of  the  sureties  of  B.  B.  for  the  due  pay- 
ment of  the  shares  of  the  other  children  and  representatives  of  A. 
B,  deceased,  declining  the  said  suretyship;  the  court  on  applica- 
tion of  the  said  B.  B.  do  approve  of  and  accept  T.  S.  of  as 
surety  for  the  purposes  aforesaid,  in  the  room  of  the  said  E.  F. 
[Here  follows  the  distribution  among  all  the  heirs  by  name.~] 


PETITION  FOR  THE  SALE  OF  THE  REAL  ESTATE  OF 
AN  INTESTATK,  WHEN  REFUSED  TO  BE  TAKEN 
AT  THE  VALUATION. 

To  the  honourable  the  judges,  etc. 

The  petition  of  John  Jones,  eldest  son  of  Samuel  Jones,  deceased, 
respectfully  represents, 

That,  his  said  father  died  seized  of  certain  real  estate,  situate 
in  the  county  of  Philadelphia,  t^Mft  [here  describe  the  estate,'] 
which  was  valued  by  an  inques%  awarded  by  this  court,  at  the  sum 
of  six  thousand  dollars;  and  the  sai^Pfiuation  was  confirmed  by 
this  court,  on  the  16th  day  of  April,  last  past:  That  the  heirs  and 


APPENDIX.  xxix 

representatives  of  said  decedent,  appeared  in  open  court  in  per- 
son (or  by  attorney,)  and  respectively  refused  to  take  the  said 
premises  at  the  valuation  aforesaid.  Your  petitioner  therefore 
prays  that  the  court  will  order  and  decree  that  the  administrator 
of  said  decedent,  expose  the  said  real  estate  to  public  sale  on  the 
premises  on  a  day  certain;  and  that  the  court  will  please  to  ap- 
prove of  the  following  terms  of  sale,  for  the  said  premises,  viz: 

That  the  widow's  thirds  be  secured  on  the  said  premises  during 
her  life: 

That  one-third   of  the   purchase  money,  after  deducting  the 
widow's  share,  be  paid  at  the  execution  of  the  deed. 

That  one  other  third  in  one  year,  and  the  balance  in  two  years. 

And  he  will,  etc. 

JOHN  JONES. 


No.  40. 
ORDER  OF  THE  COURT  ON  THE  ABOVE  PETITION. 

Whereupon,  the  court  order  and  decree  that  the  administrator 
of  the  said  Samuel  Jones,  expose  the  said  estate  to  public  sale, 
on  the  premises  on  Saturday,  the  day  of  Anno 

Domini,  1820,  at  3  o'clock  in  the  afternoon,  and  sell  the  same  for 
the  best  price  that  can  be  had  therefor.  Giving  due  public  and 
timely  notice  of  the  time  and  place  of  sale,  according  to  law,  and 
the  rules  of  the  court;  and  that  he  sell  the  said  premises  on  the 
terms  and  conditions  set  forth  in  the  said  petition. 


No.  41. 

RECOGNIZANCE  ON  THE  APPEAL  FROM  ORPHAN 

COURT. 

County  of  Philadelphia, 
"  Eastern  district  of  Pennsylvania." 

Be  it  remembered,  that  on  this  day  of  in  the  year 

before  me  William  Tilghman,  chief  justice  of  the  Supreme  Court 
of  Pennsylvania,  (or  before  the  prothonotary,)  came  Caleb  Car- 
malt,  jr.  of  the  Northern  Liberties,  and  county  aforesaid,  convey- 
ancer; and  Thomas  Street,  of  the  Northern  Liberties,  and  county 
aforesaid;  who  then  and  there  jointly  and  severally  acknowledged 
to  be  held,  and  firmly  bound  unto  George  Rex,  of  the  county 
aforesaid,  innkeeper,  in  the  sum  of  one  hundred  and  fifty  dollars 
lawful  money  of  the  United  States,  to  be  levied  of  their  goods  and 
chattels,  lands  and  tenements,  if  the  said  Caleb  Carmalt,  jr.  as 
guardian  of  Elizabeth  Rex,  Rebecca  Rex,  William  Rex,  and  Wil- 
loughby  Rex,  minor  children  of  Jacob  Rex,  formerly  of  said  coun- 


xxx  APPENDIX. 

ty  deceased,  shall  fail  in  performing  the  conditions  here  undei- 
wrirten,  that  is  to  say: 

Whereas  by  a  definitive  sentence  of  the  Orphan's  Court,  of  the 
city  and  county  aforesaid,  held  at  Philadelphia  in  and  for  the  said 
county,  on  the  fourth  day  of  March,  now  last  past,  the  return  of 
the  sheriff  of  the  city  and  county  afoiesaid,  and  an  inquest  sum- 
moned by  him  to  make  a  partition  or  valuation  of  the  real  estate 
of  the  said  Jacob  Rex,  deceased,  was  by  the  said  sentence  decreed 
and  adjudged  to  the  said  George  Rex,  at  the  price  or  valuation  of 
eight  thousand  two  hundred  dollars,  he  paying  or  securing  to  be 
paid  to  the  other  heirs  and  representatives  of  the  said  Jacob  Rex, 
deceased,  their  proportions  of  the  said  appraised  value.  And 
whereas  the  widow  of  the  said  Jacob  Rex,  and  the  said  Elizabeth 
Rex,  William  Rex,  and  Willoughby  Rex,  minor  children  aforesaid, 
acting  by  their  guardian,  the  said  Caleb  Carmalt,  jr.  have  appeal- 
ed from  the  said  sentence. 

Now  therefore  the  condition  of  this  recognizance  is  such,  that 
if  the  said  widow  and  minor  children  of  the  said  Jacob  Rex,  ac- 
ting by  their  said  guardian,  shall  prosecute  their  said  appeal  with 
effect,  and  shall  duly  p;«y  it,  case  said  sentence  shall  be  affirmed 
by  the  Supreme  Court  of  Pennsylvania,  all  and  singular  the  sums 
of  money,  which  by  reason  of  said  affirmance,  they  may  be  adjudg- 
ed or  ordered  to  pay,  then  this  recognizance  to  be  void,  or  else  to 
remain  in  full  force  and  virtue. 

Taken  and  acknowledged,  on  this — 


No.  42. 

PETITION  FOR  CITATION  TO  WIDOW  TO  ACCEPT 
OR  REFUSE  A  DEVISE  OR  BEQUEST. 

To  the  honourable  the  judges,  etc. 

The  petition  of  Jacob  Miles,  etc.     Respectfully  represents: 

That  he  is  one  of  the  legatees  under  the  will  of  Samuel  Miles, 
deceased:  that  bv  the  said  will  certain  personal  estate  was 
bequeathed,  (or  real  estate  devised)  to  Jane  Miles,  the  now  widow 
and  relictof  said  decedent,  that  said  decedent  has  been  dead  longer 
than  twelve  months,  and  the  said  Jane  has  not  made  her  elec- 
tion to  take  or  refuse  the  said  bequest,  which  if  accepted  bars  her 
right  of  dower,  as  by  the  act  in  such  case  made  and  provided  is 
directed:  The  petitioner  therefore  prays  the  court  to  award  a 
citation  directed  to  the  said  Jane  Miles,  commanding  her  to  be  and 
appear  at  an  Orphan's  Court,  to  be  holden  on  the  day  of  then 
and  there  to  make  her  election,  eitfcer  to  accept  such  (devise)  (or, 
bequest)  in  lieu  of  dower,  or  waive  such  devise  or  bequest,  and 
to  take  her  dower,  pursuant  to  the  direction  of  the  act  of  assembly 
in  such  case  made  and  provided. 

And  he  will,  etc. 


APPENDIX.  ixxi 

No.  43. 

CITATION  TO  WIDOW. 

City  and  county  of  Philadelphia. 

The  ootmuoii wealth  of  Pennsylvania 

To  Jane  Miles,  widow  of  Jacob  Miles,  deceased.  We  com- 
mand you,  that  laying;  aside  all  business  and  excuses  whatsoever, 
you  be  and  appear  in  your  proper  person,  before  our  justices  of 
the  Orphan's  Court,  at"  an  Orphan's  Court  to  be  held  at  Philadel- 
phia, for  the  city  and  county  of  Philadelphia,  the  day  of 
then  and  there  to  make  your  election,  either  to  accept  of 
the  bequest  made  you  by  your  late  husband,  in  lieu  of  your  dower, 
or  to  waive  such  bequest  and  accept  ot  your  dower,  and  hereof 
fail  not.  Witness,  etc. 

T.  F.  G.  Ckrk. 


No.  44. 

ORDER  OF  THE  COURT,  ON  THE  NON  APPEARANCE 
OF  THE  WIDOW,  &c. 

In  the  case  of  the  estate  of  Jacob  Miles,  deceased,  due  proof 
having  been  made  before  the  court,  of  the  service  of  a  citation. 
directed  to  Jane  Miles,  widow  of  Jacob  Miles,  deceased,  com- 
manding her  to  be  and  appear  before  an  Orphan's  Court,  holden 
this  day,  and  to  make  her  election  either  to  accept  of  the  bequest 
made  to  her  by  her  late  husband  in  lieu  of  her  dower,  or  to  waive 
such  bequest  and  accept  her  dower:  And  that  the  said  citation 
was  served  on  the  said  Jane,  at-  least  one  month  before  this  day 
fixed  for  her  appearance.  And  the  said  Jane  not  having  appear- 
ed, the  court,  pursuant  to  the  act  of  assembly  in  such  case  made 
and  provided,  decree  that  the  said  Jane  be  deemed  to  have  ac- 
cepted of  the  said  bequest,  and  that  such  acceptance  be  taken  as 
a  bar  of  her  dower,  and  that  a  record  may  be  made  thereof  accor- 
dingly. 


No.  45. 

ORDER  OF  THE  COURT  ON  THE  APPEARANCE  OF 
THE  WIDOW. 

Jane  Miles,  widow  of  Jacob  Miles,  deceased,  appears  in  open 
court,  and  refuses  to  accept  the  bequest  made  by  her  late  husband, 
in  lieu  of  her  dower,  and  claims  that  she  may  have  her  dower  as 
she  is  by  law  entitled  thereto. 

And  the  said  refusal  is  by  order  of  the  court,  entered  of  record. 


xxxii  APPENDIX. 

No.  46. 

PETITIONS  FOR  GUARDIAN,  FOR  MINORS  UNDER 
FOURTEEN  YEARS. 

To  the  honourable  the  judges  of  the  Orphan's  Court,  of  the  city 
and  county  of  Philadelphia, 

The  petition  of  James  Reese,  a  minor  child  of  John  Reese,  de- 
ceased, late  of  the  county  of  Philadelphia,  by  his  mother  A.  R. 
Respectfully  represents: 

That  the  petitioner  is  under  the  age  of  fourteen  years,  and  has 
no  person  legally  authorized  to  take  charge  of  his  person  or  estate. 
He  therefore  prays  the  court  to  appoint  some  suitable  person  his 
guardian  for  that  purpose. 

And  he  will,  etc. 

ANN  REESE,  for 
JAMES  REESE. 

July  16,  1819. 


No.  47. 

PETITION  BY  MINORS  ABOVE  FOURTEEN  YEARS. 

To  the  honourable,  etc. 

The  petition  of  John,  William,  and  Samuel  Carver,  Respect- 
fully represents: 

That  the  petitioners  are  minor  children  above  the  age  of  four- 
teen years,  of  Daniel  Carver,  depeased,  late  of  the  city  of  Philadel- 
phia; that  they,  have  no  person  legally  authorized  to  take  care  of 
their  persons  and  estates,  and  they  pray  the  court,  that  they  may 
be  permitted  to  make  choice  ot  a  suitable  guardian,  for  that  pur- 
pose. 

And  they  will,  etc.  J.  C. 

W.  C. 

s.  c. 

July  16, 1819. 


No.  48. 

PETITION  FOR  MINORS  UNDER  AND  ABOVE  FOUR- 
TEEN. 

To  the  honourable,  etc. 

The  petition  of  Mary  Jones,  widow  and  relict  of  Samuel  Jones, 
deceased,  in  behalf  of  Matthew,  and  Thomas  Jones,  minors  under 
the  age  of  fourteen  years,  and  of  Nathan,  and  Jacob  Jones,  minors 
above  the  age  of  fourteen  years,  all  children  of  the  said  Samuel, 


APPENDIX.  xxxiii 

deceased,  late  of  the  county  of  Philadelphia,    Respectfully  repre- 
sents, 

That  the  said  minors,  have  no  person  legally  authorized  to  take 
charge  of  their  persons  and  estates;  therefore  the  said  Mary  Jones* 
in  behalf  of  those  under  the  age  of  fourteen,  prays  the  court 
to  appoint,  and  those  above  the  age  of  fourteen  pray  that  they 
may  be  permitted  to  choose,  some  suitable  person  guardian  of 
their  persons  and  estates,  etc. 

And  they  will,  etc.  M.  J. 

M.J. 
T.  J. 

July  17,  1819. 


No.  49. 

PETITION  FOR  AN  ORDER  TO  'SELL  MINOR'S  ES- 
TATE. 

To  the  honourable  judges  of  the  Orphan's  Court,  etc. 

The  petition  of  John  Brown,  guardian  of  Matthew  Jones,  a 
minor,  under  the  age  of  fourteen  years,  respectfully  represents, 

That  the  said  minor's  personal  estate,  is  inadequate  to  his 
maintenance  and  education.  .That  he  is  seized  in  fee  of,  etc. 
\_Here  describe  the  real  estate^]  And  the  petitioner  therefore 
prays  the  court  to  appoint  auditors,  to  ascertain  the  facts  set  forth 
in  his  petition,  and  to  report  what  portion  of  the  real  estate  of 
said  minor  in  their  opinion  should  be  sold  for  his  maintenance 
and  education. 

And  he  will,  etc. 


No.  50. 
REPORT  OF  AUDITORS  ON  FOREGOING  PETITION. 

To  the  honourable  the  judges,  etc. 

The  undersigned  auditors  appointed  by  the  honourable  court, 
on  the  16th  day  of  June,  A.  D.  1819,  to  ascertain  the  truth  of  the 
facts  set  forth  in  the  petition  of  John  Brown,  guardian  of  M. 
Jones,  etc.  make  report, 

That  upon  investigating  the  accounts,  filed  by  the  said  guardian, 
it  appears  that  the  personal  estate  of  said  minor  is  inadequate  to 
his  maintenance  and  education;  and  that  in  their  opinion  it  is 
necessary  to  sell  the  following  described  real  estate,  of  the  said 
minor,  for  the  purpose  of  hie  maintenance  and  education,  viz; 
[describe  the  estate."] 

Witness  our  hands,  this  15th  day  of  July,  A.  D.  1819. 

Signed,  etc. 


xxxiv  APPENDIX. 

No.  51. 

ORDER  OF  SALE  FOR  ESTATE  OF  MINOR. 

City  and  county  of  Philadelphia,  ss. 

At  an  Orphan's  Court,  held  at  Philadelphia,  for  the  city  and 
county  aforesaid,  on  the  sJ3d  day  of  June,  A.  D.  1819.  Before 
the  honourable  Jacob  Rush,  and  his  associates,  justices  of  said 
court. 

On  the  petition  of  John  Hulme,  guardian  of  Mary,  Juliana,  and 
Christiana  Hewlings,  setting  forth  that  the  auditors  appointed  by 
the  court,  on  his  petition,  have  reported  that  the  personal  property 
of  said  minors  is  not  adequate  to  their  maintenance  and  educa- 
tion, and  that  in  their  opinion,  it  is  necessary  to  sell  the  interest 
of  said  minors,  in  a  certain  house  and  lot  of  ground,  situate  No. 
19  north  Front  street,  in  the  city  of  Philadelphia.  The  said 
house  and  appurtenances  being  valued  at  4000  dollars,  and  the 
interest  of  the  said  minors  therein  being  one  twelfth  part  thereof: 
and  praying  the  court  to  grant  him  an  order  to  make  sale  of  the 
said  premises,  for  the  maintenance  and  education  of  said  minors, 
pursuant,  to  the  act  of  assembly,  elc. 

The  court  order  and  decree,  that  the  said  guardian  expose  the 
said  premises  to  public  sale,  on  Tuesday  the  13th  day  of  July,  A. 
D.  1819,  at  half  past  seven  o'clock  in  the  evening,  at  the  Mer- 
chant's Coffee  Home,  in  the  city^of  Philadelphia,  and  sell  the 
same  for  the  best  price  that  can  be  had  therefor.  Giving  due 
public  and  timely  notice  of  the  time  and  place  of  sale  (sec.  Reg.  et. 
Le.g.)  and  make  report  of  his  proceeding  herein,  at  the  next  stated 
Orphan's  Court. 

By  the  court,  T  F.  G.  Clerk. 


No.  52. 
REPORT  OF  SALE  OF  A  MINOR'S  ESTATES. 

To  the  honourable,  etc. 

John  Hulme,  guardian  of  Mary,  Juliana,  and  Christiana  Hew- 
lings, Resptctfully  represents, 

That  pursuant  to  the  order  of  this  court  of  the  23d  June,  1819, 
he  exposed  the  premises  therein  described  to  public  sale,  and 
sold  the  same  to  A.  B.  for  the  sum  of  three  hundred  dollars,  he 
being  the  highest  bidder,  and  that  the  highest  price  bidden  for  the 
same.  Which  sale  so  made  he  prays  may  be  confirmed. 

And  he  will,  etc. 

*  •  JOHN  HULME. 

July  14,  1819. 


APPENDIX.  xxxv 

No.  53. 
BOND  GIVEN  BY  GUARDIAN. 

Know  all  men  by  these  presents,  that  we,  J.  S.  and  R.  M.  of  the 
city  of  Philadelphia,  are  held  and  firmly  bound  to  T.  F.  *G.  Esq. 
clerk  of  the  Orphan's  Court,  in  trust,  for  S.  R.  a  minor,  and  ward, 
of  said  J.  S.  in  the  sum  of  one  thousand  dollars,  lawful  money  of 
the  United  States,  to  be  paid  to  the  said  T.  F.  G.  clerk  of  the 
court  aforesaid,  ex-oflicio,  his  successors,  or  assigns.  To  wtrich 
payment  well  and  truly  to  be  made,  we  do  bind  ourselves,  our 
heirs,  executors,  and  administrators,  and  every  of  them,  firmly  by 
these  presents,  sealed  with  our  .seals,  dated  this  day  of 

Whereas,  by  an  order  of  the  said  court,  made  on  the  19th  day 
of  June,  18 — ,  the  said,  J.  S.  did  sell  the  estate  of  the  said  S.  R. 
for  the  sum  of  five  hundred  dollars: 

And  whereas  by  an  act  of  assembly  of  the  commonwealth  of 
Pennsylvania,  passed  7th  day  of  April,  1 807,  it  is  ordained  that 
the  guardian  before  he  shall  proceed  to  convey,  shall  give  bond 
with  sufficient  security  to  the  Orphan's  Court; 

Now  the  condition  of  this  obligation  is  such,  that  if  the  said  J. 
S.  guardian,  aforesaid,  shall  dispose  of  the  proceeds  of  the  sale  of 
said  estate,  so  as  aforesaid  made,  for  the  use  of  the  said  minor, 
and  shall  invest,  within  six  months  from  the  receipt  of  the  same, 
so  much  thereof  as  shall  not  be  immediately  required,  in  good 
real,  or  other  security  for  his  use;  And  further  shall  and  will 
pay  over  to  the  said  minor,  his  executors,  or  administrators,  the 
sums  which  shall  appear  due  to  the  said  minor,  on  the  settlement 
of  his  accounts  by  the  Orphan's  Court  aforesaid,  agreeably  to  any 
order  the  said  court  may  hereafter  make,  then  the  above  obligation 
to  be  void,  or  else  to  remain  in  full  force  and  virtue. 

Sealed  and  delivered  in  presence  of  J.  S. 

A.M. 


No.  54. 

PETITION  FOR  CITATION  TO  GUARDIAN  TO  SETTLE 
ACCOUNTS. 

To  the  honourable,  etc. 

The  petition  of  James  Ford,  respectfully  represents, 

That  Samuel  Jones,  was  duly  appointed  guardian  of  his  person 
and  estate  by  this  court,  that  his  guardianship  has  expired  the  pe- 
titioner having  attained  his  majority,  but  his  late  guardian  has 
not  filed  an  account  of  his  trust.  Your  petitioner,  therefore  prays 
the  court  will  issue  a  citation,  directed  to  the  said  S,  Jones,  com- 
manding him  to  file  an  account  of  his  guardianship,  on  or  before 
the  next  Orphan's  Court,  or  shew  cause  why  he  should  not. 

And  he  will,  etc. 


xxxri  APPENDIX. 

No.  55. 

PETITION  FOR  THE  APPOINTMENT  OF  AUDITORS  ON  THE 
ACCOUNTS  OF  GUARDIAN. 

To  the  honourable,  etc. 

The  petition  of  J.  Ford,  respectfully  represents, 

That  Samuel  Jones,  his  late  guardian,  has  filed  the  accounts  of 
his  guardianship,  which  he  prays  may  be  referred  to  auditors 
appointed  by  the  court  to  audit  and  adjust  the  same,  and  make 
report  thereon. 

And  he  will,  etc.  J.  F. 


No.  56. 

REPORT  OF  AUDITORS. 

To  the  honourable,  etc. 

The  auditors  appointed  by  the  court  to  audit  and  adjust  the 
accounts  of  Samuel  Jones,  late  guardian  of  J.  Ford,  report, 

That,  having  examined  the  said  accounts  with  the  vouchers  pre- 
sented, they  are  of  the  opinion  that  the  same  are  correct,  that 
there  is  a  balance  due  said  Ford  by  his  late  guardian,  of  dol- 
lars, (or,)  that  they  have  discovered  errors  and  omissions  in  said 
account,  which  are  stated  in  the  additional  account  herewith  pre- 
sented, and  which  they  pray  may  be  received  as  part  of  their  re- 
port. 

All  which  is  respectfully  submitted. 


No.  57. 

AFFIDAVIT  OF  THE  TRUTH  OF  EXCEPTIONS  TO  RE- 
PORT  OF  AUDITORS,  ON  GUARDIAN'S  ACCOUN  1\ 

County  of  Philadelphia,  ss. 

Elizabeth  Smith  being  duly  sworn,  saith  the  above  exceptions 
are  just  and  true  to  the  best  of  her  knowledge  and  belief. 

Sworn,  etc.  E.  J- 


APPENDIX.— No.  II. 


JOHN  M'PHERSON  vs.  ROBERT  CUNLIFF  &  AL. 
ERROR  TO  COMMON  PLEAS  OF  ALLEGHANY  COUNTY. 

Pittsburg,  13  Sept.  1824.     Before  Gibson  and  Duncan,  Justices. 
Opinion  of  the  Court  delivered  by  Duncan,  Justice. 

THIS  is  a  novel  and  very  extraordinary  case.  During  its  dis- 
cussion, I  must  confess  that  I  felt  alarm  from  the  great  gravity  with 
which  the  argument  on  the  general  question  was  put,  and  the  zeal 
and  ability  with  which  it  was  argued  by  the  counsel  of  plaintiff' in 
error,  lest  we  should  be  compelled  to  give  one  of  the  most  unjust 
judgments  ever  given  in  a  court  of  justice;  for  it  would  be  difficult 
for  the  warmest  imagination  to  figure  a  claim  more  destitute  of  every 
colour  of  justice  and  equity,  than,  in  reality,  the  demand  of  the 
present  plaintiff  is.  Brushing  from  my  remembrance  as  far  as  it 
is  possible  to  efface  and  overcome  the  unfavourable  impressions 
which  will  be  made  from  the  survey  of  the  whole  transaction,  and 
bringing  to  the  consideration  of  the  various  questions  that  arise  on 
it,  a  mind  I  trust  free  from  all  unjust  prejudices,  after  a  very  full 
and  anxious  inquiry  and  deliberation,  my  understanding  and  my 
judgment  are  convinced,  that  as  it  is  void  of  all  grace  and  deco- 
rum, so  it  is  unsupported  by  any  principle  of  law,  and  it  is  in  op- 
position to  every  sound  principle  of  justice  and  good  sense.  This 
is  the  history  of  this  transaction. 

James  M'Pherson,  the  plaintiff's  father  (for  though  he  now 
claims  to  be  filius  nullius,  he  is  the  natural  child  of  James,  and 
James  is  his  putative  father,)  some  time  before  1783,  was  married 
in  Ireland  to  one  Isabella  Johnson  by  whom  he  had  no  children;  he 
deserted  her  and  migrated  to  this  country.  In  1785  or  6,  he  made 
his  first  appearance  in  the  neighbourhood  of  Pittsburg,  bringing 
with  him  the  plaintiff's  mother  whom  he  called  his  wife,  and  while 
they  cohabited  as  man  and  wife,  in  the  same  year  the,  plaintiff 
was  born;  they  brought  with  them  a  daughter,  Eliza,  born  before, 
who  is  now  living.  In  1790  he  bought  a  vacant  lot  in  the  town  of 
Pittsburg,  No.  284,  the  lot  in  dispute,  which  was  the  site  of  a 
brick-yard,  in  a  part  of  the  town  then  not  built  up  to;  and  erected 
a  small  log  building — the  price  of  the  whole  lot  was  100/.  He 
resided  in  this  house  with  Rebecca  the  plaintiff's  mother,  and  with 
the  two  children,  always  acknowledging  her  as  his  lawful  wife, 
and  these  two  children  as  their  lawful  issue.  In  1793  they  sepa- 
rated, not  as  a  man  separates  from  his  concubine,  for  both  ac- 
knowledged they  parted  as  man  and  wife,  on  some  matrimonial 


sxxviii  APPENDIX. 

misunderstanding.  The  mother  taking  Eliza  the  daughter  with 
her,  to  Baltimore^  and  the  father  putting  out  the  son  to  board;  and 
it  is  proper  to  observe  that  one  of  the  debts  for  which  the  lot  was 
sold  was  the  debt  contracted  for  the  maintenance  of  this  very  son 
— for  be  he  bastard  or  legitimate  the  father  was  bound  to  maintain 
him.  In  1794  James  abandoned  his  family  and  house,  to  seek  his  for- 
tunein  another  country,  for  New  Orleans  was  then  a  foreign  country, 
after  having  in  vain  endeavoured  to  sell  this  property  for  8400. 
Whether  he  arrived  there  or  died  on  his  passage  does  not  appear 
in  evidence — he  died  intestate.  In  1794,  Rebecca,  the  mother  of 
his  children  and  acknowledged  wife,  returned  to  Pittsburg  with 
Eliza.  There  was  next  to  nothing  of  personal  property,  the  in- 
ventory amounting  to  ll.  9s.  5d  only,  about  sufficient  to  pay  for 
the  letters  of  administration.  The  lot  producing  no  rent,  and  seve-, 
ral  debts  to  pay,  some  of  them  of  record  in  the  Common  Pleas  of 
the  county.  In  this  state  of  things  supposing  the  children  to  be 
legitimate,  what  was  proper  to  be  done. — Widow  and  children 
destitute— debts  to  pay — no  personal  estate.  The  wisdom  of  the 
law  had  provided  a  remedy  by  authorising  the  Orphan's  Court  to 
mortgage  or  sell  such  part  or  parts  of  the  lands  of  the  intestate  at 
public  sale  as  they  should  from  time  to  time  think  fit  to  allow,  order 
and  decree, for  payment  of  the  debts  defraying  the  just  maintenance 
of  the  children,  for  putting  them  apprentices,  teaching  them  to 
read  and  write,  and  for  the  improvement  of  the  residue  of  the 
estate,  if  there  should  be  any  left,  and  that,  on  the  petition  of  the 
administrators. 

That,  on  the  petition  of  the  administrators,  letters  of  adminis- 
tration issued  to  the  widow,  and  a  friend  of  the  family,  who,  on 
the  first  Monday  of  March,  1795,  presented  their  petition  to  the 
Orphan's  Court,  stating  all  the  facts  necessary  to  give  the  court 
jurisdiction  and  power  to  decree  a  sale — the  intestacy  of  James 
M'Pherson,  seizin  of  the  lot,  leaving  a  widow  and  children  and 
debts  to  pay  and  no  personal  estate,  and  praying  an  order  to  sell 
a  moiety  of  the  lot.  The  court  decreed  a  sale  agreeably  to  the 
prayer  of  the  administrators.  A  sale  was  made  in  pursuance  of 
this  decree,  to  Abner  and  Jesse  Barker,  of  one-fourth  of  the  lot, 
returned  and  confirmed,  and  a  conveyance  made  to  the  purchaser 
— and  a  sale  to  Samuel  Stroop  of  another  fourth — i-eturned,  con- 
firmed, and  conveyance  by  administrators.  These  two  sales 
amounted  to  93J.  os.  The  administrators  in  December,  1795, 
again  petitioned  the  court,  stating  the  former  petition,  order  of 
sale,  and  sales,  and  setting  forth  that  the  first  sales  were  not 
sufficient  to  maintain  the  widow  and  children,  and  praying  an 
order  to  sell  another  fourth  part.  Whereupon  the  said  court  being 
satisfied  of  the  truth  of  the  facts  stated  in  the  said  petition,  order 
that  one  other  fourth  part  be  sold,  a  sale  is  made,  returned  and 
confirmed,  to  James  Carothers  for  seventy-five  pounds. 

On  the  4th  March,  1795,  inventory  filed,  before  any  sale,  but 
there  was  not  any  written  statement  of  the  debts  filed;  though  it 


APPENDIX.  xxxix 

was  given  in  evidence  that  there  were  several  debts,  some  of  them 
of  record.  In  March,  1796,  a  regular  administration  account  was 
settled  and  confirmed,  by  the  Orphan's  Court,  in  which  the  ad- 
ministrators charge  themselves  with  the  amount  of  the  inventory 
and  a  small  debt  not  included  in  it,  with  the  proceeds  of  sale  of 
the  three-fourths  of  the  lot,  and  praying  a  credit  for  the  payment 
of  debts  of  intestate,  maintaining  of  children,  and  building  erected 
on  the  reserved  fourth.  The  conveyance  from  the  administrators 
to  Barker,  was  executed  on  the  10th  December,  1795;  to  Stroop, 
1st  March,  1796;  to  Carothers  4th  Feb.  1796;  so  that  the  inven- 
tory was  filed  before  the  sale  to  any  one,  and  the  administration 
account  before  the  conveyance  to  Stroop.  There  was  a  balance 
found  in  the  hands  of  the  administrator  of  4l.  4s.  Qd.  part  of  the 
proceeds  of  the  first  sale  which  was  applied,  by  the  widow,  to  build 
a  house  on  the  part  reserved  for  the  habitation  of  the  family. 

It  appears  there  were  guardians,  appointed  by  the  Orphan's 
Court,  of  these  children,  as  the  lawful  children  of  intestate.  There 
is  no  allegation  of  connivance  or  collusion  between  the  adminis- 
trators and  purchasers,  or  of  the  conduct  of  the  administrators 
being  fraudulent,  nor  any  ground  to  impeach  the  sale  for  unfair- 
ness, nor  is  inadequacy  of  price  complained  of:  nor  is  it  pretend- 
ed that  the  purchasers  had  any  knowledge  of  the  illegitimacy  of 
the  children,  nor  that  they  believed  otherwise,  than  that  they 
were  the  widow  and  lawful  children  of  the  deceased. 

On  the  ground  sold  buildings  have  been  erected,  said  to  have 
cost  §20,000,  and  on  the  reserved  part,  a  brick  building  with  the 
money  arising  from  the  sales,  in  which,  the  widow  and  children 
have  constantly  resided.  The  present  defendants  have  derived 
their  titles  bona  fide  and  for  large  considerations,  without  the  im- 
putation of  fraud  or  notice  of  defect  of  title. 

The  marriage  by  John  Wilkins,  in  1790,  neither  makes  these 
children  more  or  less  bastards.  Their  father  had  a  former  wife 
living  at  their  birth,  the  illegitimacy  is  clearly  established.  From 
the  silence  of  the  parties  to  this  ceremony,  and  its  secrecy,  for  it 
was  know  only  to  the  justice,  and,  in  1803  discovered  at  his  death 
by  accident  in  his  docket,  we  must  conclude  the  secrecy  was  ob- 
served to  give  to  the  children  the  rank  in  society,  which  they 
would  hold  as  lawful  children  not  subject  to  the  reproach  of 
bastardy. 

The  plaintiff  now  demands  the  surrender  of  this  property, 
with  all  its  valuable  erections,  of  twenty  times  greater  value  than 
the  naked  lot,  because,  as  he  says,  all  the  proceedings  of  the  Or- 
phan's Court  are  null  and  void,  founded  in  error  and  mistake. 
That  nine  years  after  he  came  of  age,  twenty  years  after  the  sale, 
he  has  discovered  that  his  father  had  a  wife  in  Ireland;  that  his 
father  was  guilty  of  adultery  and  bigamy,  and  that  his  mother 
was  an  unchaste  woman,  and  he  a  bastard;  and  that  he  made  a 
trip  to  Ireland,  found  out  the  just  heirs,  obtained  a  conveyance 
from  them  for  the  whole  lot  and  buildings  for  less  money,  than 


fl  APPENDIX. 

the  three-fourths  of  the  naked  lot  sold  for,  to  pay  his  father's  debts, 
and  support  himself,  his  mother  and  sister,  and  put  a  building  on 
the  reserved  fourth.  He  has  fully  established  his  ovvn  illegiti- 
macy and  that  the  grantors  are  the  lawful  heirs  of  James  M'Pher- 

SOll. 

If  the  administrators  had  not  asked  by  petition  for  a  sale,  but 
suffered  what  they  otherwise  could  not  have  prevented,  a  sale  on 
ft  judgment  arid  execution  for  the  debts  of  decedent,  all  the  lot 
must  huve  been  irretrievably  gone.  The  balance,  if  any,  after 
payment  of  the  debts,  would  have  come  to  the  hands  of  the  admi- 
nistrators and  they  alone  would  then  be  accountable. 

What  gave  birth  to  the  present  controversy  was  the  discovery 
thus  lately  made  of  the  illegitimacy  of  those  children:  and  the 
effect  of  that  fact  which  is  clearly  established  upon  the  sales,  is 
the  great  question.  As  a  great  question  it  has  been  considered 
and  very  ably  argued,  by  the  counsel  on  both  sides,  and  it  merits 
consideration  as  a  great  and  important  question. 

For  it  is  now  to  be  considered,  whether  all  these  proceedings, 
decrees  of  the  Orphan's  Courts,  sales  and  confirmations  by  the 
court,  vast  improvements  made,  titles  derived,  possession  long 
continued  on  the  faith  of  these  decrees  of  the  Orphan's  Court,  a 
court  of  record  having  competent  jurisdiction,  are  null  and  void, 
and  that  they  are  to  be  so  decreed  indirectly  in  ejectment  an 
original  action,  while  these  decrees  remain  unreversed  and  in  full 
force.  There  are  minor  objections — the  want  of  adherence  to  pre- 
scribed formulae,  and  to  certain  ceremonial  observances.  These 
will  be  considered  in  the  sequel  so  far  as  it  may  be  deemed  ne- 
cessary to  notice  them.  If  the  plaintiff  fail  to  support  (that  which 
his  counsel  has  properly  considered  as  his  strong  hold,)  the  posi- 
tion, that  all  the  solemn  proceedings  of  this  Court  of  Record  in- 
vested with  chancery  powers,  conducted  by  chancery  rules,  and 
acting  on  and  governed  by  the  principles  of  a  court  of  equity,  are 
mere  nullities,  he  cannot  recover: — but  if  as  between  the  present 
defendant  and  the  heirs  at  law  of  James  M'Pherson,  they  as 
plaintiffs  could  recover,  it  is  an  inquiry  of  great  moment: — can  this 
plaintiff,  having  acquired  the  title,  have  any  status  in  curia  from 
the  relation  in  which  he  stands  to  the  defendants?  that  is,  can  they 
estop  him,  stop  his  mouth,  when  he  opens  it  with  an  intention  to 
proclaim  his  own  bastardy,  and  on  that  ground  defeats  their  title? 
It  must  be  constantly  kept  in  view,  that  they  do  not  claim  title 
under  the  heirs  of  James  M'Pherson — their  title  is  paramount. — 
They  say  that  the  absolute  descent  to  them  is  quo  modo  suspended 
until  the  debts  of  the  ancestor  are  paid — that  the  descent  is  inter- 
rupted by  the  proceedings  of  the  Orphan's  Court,  and  defeated  by 
the  judicial  sale.  There  are  legal  and  equitable  estoppels.  Legal, 
where  the  law  estops  a  man  to  falsify  a  judicial  act  to  which 
he  is  a  party  and  from  which  he  has  received  a  benefit;  and  equi- 
table ones  which  will  estop  him  from  using  a  title  which  in  good 
conscience  ought  to  inure  to  the  use  of  another.  To  give  an  ex- 


APPENDIX.  xli 

ample  in  the  outset.  If  John  M'Pherson  had  sold  and  conveyed 
this  lot  to  another  in  the  character  of  lawful  heir  of  James  his 
father,  and  he  is  not  his  heir  but  a  bastard,  and  on  discovering 
this  he  purchased  from  the  lawful  heir,  he  never  could  recover. 
He  would  be  estopped.  There  are  legal  estoppels  from  the  opera- 
tion of  which  Chancery  would  relieve,  but  here  the  want  of  con- 
science is,  in  setting  up  the  bastardy.* 

In  general  the  law  is  that  the  grantor  is  estopped  by  his  own 
deed  to  say  he  had  no  interest,  when  by  a  subsequent  deed  he  ac- 
quires a  title.  As  where  an  heir  apparent  having  the  hope  only 
of  succession,  conveyed  during  the  life  of  his  ancestor,  an  estate, 
which  afterwards  descended  to  him;  he  is  estopped  to  say  he  had 
no  interest  at  the  time  of  his  grant.  These  estoppels  run  with  the 
land  into  whatever  hand  it  comes.  As  if  A  make  a  lease  by  in- 
denture, of  black  acre,  and  after  purchases  ami  conveys  it  to  B; 
B  is  bound  by  this  estoppel.  Travannion  v.  Laurence,  2.  Salk266. 
These  estoppels  are  founded  in  law,  honour,  and  conscience,  and 
the  true  reason  is,  that  a  man  having  received  a  benefit  in  one 
character,  the  value  of  the  thing,  shall  not  afterwards  recover  the 
thing  itself,  In  another  character.  This  h'gal  and  equitable  prin- 
ciple runs  throughout  all  the  transactions  and  contracts  of  life.  As 
in  an  action  by  the  assignee  of  a  patentee  ftgainst  the  patentee 
himself,  he  is  estopped  from  saying  it  is  not  a  ne^  invention,  be- 
cause he  has  received  the  benefit  of  it  as  such,  and  though  all  the 
world  else,  may  show  this,  he  shall  not  be  permitted  to  do  it.  The 
justice  of  this  principle  is  stamped  on  every  human  breast,  civi- 
lized or  savage,  the  wild  man  of  the  forest,  and  the  civilized  man 
in  a  social  state. 

Estoppel  stoppeth  the  mouth  of  a  man  to  alledge  or  plead  the 
truth  by  matter  of  record  as  by  letters  patent,  common  recovery, 
pleading,  confession,  admittances  and 'acceptances;  every  act  of  a 
party  where  a  Court  of  Record  has  jurisdiction  estops  him;  for  no 

*  Chancellor  Kent  in  Vanhorne,  v.  Fonda,  i  John  Cb.  Rep  388.  states  a  prin- 
ciple in  Equity  strongly  applicable  to  this  case.  Admitting  that  one  tenant  in  com- 
mon, may  in  a  particular  case,  purchase  in,  an  outstanding  title  for  his  own  benefit, 
yet  where  two  devisees  are  in  possession  of  land,  under  an  imperfect  title,  derived 
from  their  common  ancestor,  one  of  them  cannot  buy  an  outstanding  adversary  title 
to  deforce  and  expel  his  co-tenant,  for  such  purchase  will  inure  to  their  common 
benefit,  subject  to  an  equal  contribution  to  the  expense.  The  reason  holds  equally 
in  the  law — it  is  not  consistent  with  good  faith,  nor  the  duty  which  the  state  of 
the  parties  as  claimants  of  a  common  subject  created,  that  one  of  them  should  be 
able  without  consent  of  the  other,  to  buy  in  an  outstanding  title,  and  appropriate  the 
whole  to  himself,  and  thus  undermine  his  co-tenant.  It  would  be  an  unusual  act, 
repugnant  to  a  sense  of  refined  and  accurate  justice;  it  cannot  be  tolerated  in  a  com- 
mon subject,  in  which  the  parties  had  an  equal  concern,  and  which  created  an  obli- 
gation to  deal  candidly,  and  honestly,  with  each  other.  Community  of  interest  pro- 
duces a  community  of  duty,  and  there  is  no  defence  on  the  ground  of  justice  and 
policy  when  one  co-tenant  buys  an  outstanding  incuinbrance,  or  an  adverse  title, 
to  deforce  and  expel  the  other.  Here  to  be  sure  the  estates  were  separate,  but  they 
all  were  derived  from  the  same  source,  James  M'Pherson,  now,  long  enjoyed  under 
the  same  title,  and  the  equity  of  the  purchasers  against  the  plaintiff' is  stronger  than 
the  case  of  co-tenants. 

6 


xlii  APPENDIX. 

man  shall  be  permitted  to  make  an  averment  against  a  record. 
When  the  record  of  the  estoppel  goes  to  the  disability  or  legiti- 
macy of  the  person,  even  strangers  shall  take  advantage  of  the 
record.  Co.  Litt.  352.  (a)  Doct.  and  Stud.  69.  Two  sue  livery  as 
heirs  it  is  estopped  between  them  so  that  one  shall  not  bastardize 
the  other,  Br.  M.  Est.  pi.  15,  and  it  is  there  agreed,  that  in  all 
records  in  which  franktenement  comes  into  dispute  it  shall  be 
estopped  with  the  land,  so  that  a  man  may  plead  it  as  party,  or 
as  heir,  or  by  que  estate.  Ibid.  In  law  this  is  certainly  so,  but  if  a 
legitimate  daughter  and  her  sister,  a  bastard,  join  in  suing  of  the 
livery,  this  ought  not  to  bar  in  equity  though  it  might  estop  at 
law.  Carter's  Rep.  27.  An  entry  by  estoppel  shall  not  be  awarded  in 
equity,  nor  is  the  jury  bound  to  find  it:  and  so  the  law  seems  to 
be  in  cases  of  obligations,  costs,  and  personal  contracts;  but  where 
the  estate  is  bound  by  the  conclusion,  and  converted  to  an  inte- 
rest, though  it  be  found  by  a  jury,  yet  the  court  shall  judge,  ac- 
cording to  the  law,  that  the  estate  is  good  by  reason  of  the  estop- 
pel, Pollexf,  67.  If  the  heir  does  not  claim  the  land  from  him  who 
made  the  estoppel,  but  by  his  own  purchase,  or  by  another  an- 
cestor, he  is  not  bound  by  the  estoppel,  Jo.  460.  But  here  the 
decree  and  sale  operated  on  the  estate  of  the  intestate,  for  by  a  sale 
made  by  administrator  by  order  of  probate  or  surrogate  for  the 
payment  of  deltts,  the  estate  passes  to  the  purchaser  by  operation 
of  law,  so  that  he  is  in  the  estate  of  intestate; — the  land  descends, 
but  the  interest  of  the  heir  is  liable  to  be  defeated  by  a  sale  made 
by  administrators.  Reed  v.  Williams,  7  Wheat.  114.  Buckly 
v.  Pollard,  20  Johns.  420.  One  of  the  reasons  why  estoppels  are 
allowed  is,  that  what  once  a  man  has  alledged,  is  to  be  considered 
true,  and  he  ought  not  to  be  permitted  to  contradict  it,  as  in 
Willing  and  M  v.  Brown,  7  Sergt.  and  R.  407.  One  with  whose 
privity  and  under  whose  direction  on  an  execution  against  him,  a 
marshall's  sale  was  made  of  an  estate  as  his,  shall  not  be  permit- 
ted to  contradict  it,  and  what  is,  perhaps,  more  to  the  purpose 
the  doctrine  of  estoppel  has  been  held  with  regard  to  acts  in 
the  Orphan's  Courts;  the  heir  at  law  has  been  estopped  by  his 
acts,  in  the  court,  from  asserting  his  right,  and  thereby  convert- 
ing real  into  personal  property.  Appeal  to  the  Supreme  Court,  of 
John  Anderson,  administrator  of  Christopher  Griffith,  deceased.  4 
Yeates  35.  This  estoppel  is  not  unconscientious,  depriving  one  of 
his  right  of  inheritance,  but  it  is  where  one  qua  heir  has  received 
the  inheritance  and  conveys  it;  he  shall  not  be  permitted  to  re- 
ceive it  again,  by  falsifying  the  record  and  denying  his  heirship, 
and  keep  the  benefit  which  he  has  received  in  that  character. 
It  is  a  doctrine  of  legal  policy,  forbidding  a  party  to  a  transaction, 
to  deny  or  falsify  it,  when  he  has  received  a  benefit,  an  estoppel 
running  with  and  working  on  the  land.  If  James  M'Pherson  is  a 
party  to  the  record,  that  which  he  has  done  so  solemnly,  and  deli- 
berately avowed,  that,  by  means  of  which  he  was  supported,  he 
shall  not  be  permitted  to  disturb.  Infants  are  represented  by  the 
administrators,  in  these  proceedings,  as  they  are  in  case  of  valua- 


APPENDIX.  xliii 

tion  by  the  guardian  who  may  accept,  and  bind  his  infant  ward 
by  a  recognizance  to  any  amount.  Gelbach's  Appeal,  8  Sergt.  -uid 
R.  205.  Suppose  all  the  children  to  have  refused,  and  a  sale 
made  by  administrator  under  order  of  Orphan's  Court,  which 
might  be — could  John  then  have  recovered  from  sucli  purchaser? 
But  I  am  anticipating — this  falls  under  another  head. 

Considering  this  sale  as  a  proceeding  in  rein  to  which  all  those 
claiming  under  the  intestate  are  parties,  my  opinion  is,  that  a 
chancellor  would  postpone  the  present  plaintiff,  and  adminisrteriug 
justice,  as  we  do  in  this  mixed  forum  of  law  and  equity,  that 
in  this  act  of  ejectment,  which  with  us  is  in  the  place  of  a  bill  in 
equity,  he  ought  not  to  recover.  At  law  it  would  be  an  estoppel 
which  Chancery  neve^  would  relieve  against,  for  both  law  and  con- 
science demand  that  he  should  be  estopped.  And  it  is  the  great 
excellence  of  a  Court  of  Equity,  that  it  may  deny  its  aid  where 
justice  requires  it,  and  lend  it  on  such  terms  as  it  may  think  pro- 
per to  prescribe;  and  though  I  cannot  myself  discover  any  solid 
objection  to  that  conclusion,  yet  it  may  seem  to  others,  that  it  is 
stretching  the  doctrine  of  estoppel  further  than  it  has  yet  been 
done.  .  I  put  the  case  on  another  ground,  an  impregnable  ground, 
one  which  will  disturb  no  man's  possession  where  it  has  been 
fairly  acquired  and  long  enjoyed,  and  where  the  defendants  have 
so  long  reposed  on  that  full  faith  and  credit  which  the  law 
bestows  on  all  judicial  tribunals  acting  with'm  their  proper  sphere 
of  jurisdiction,  and  on  decrees  under  which  so  many  estates  are 
daily  conveyed;  a  ground,  which  while  it  unsettles  no  former  de- 
cisions, confirms  to  that  most  useful  tribunal,  the  Orphan's  Court, 
the  sanction  which  every  court  of  record  holds. 

It  is  enacted  by  the  Act  of  1713,  establishing  the  Orphan's 
Court,  that  the  justices  of  the  peace  shall  hold  and  keep  a  Court  of 
Record  in  each  county,  which  shall  be  styled  the  Orphan's  Court; 
and,  by  the  Constitution  the  judicial  power  of  the  Commonwealth 
is  vested  in  a  Supreme  Court,  in  a  Court  of  Oyer  and  Terminer, 
and  a  general  gaol  delivery  in  a  Court  of  Common  Pleas,  and  Or- 
phan's Court,  so  that  the  tribunal  is  not  only  a  court  of  record 
but  a  constitutional  court.  By  the  8th  Sec.  of  the  Act  of  1713, 
it  is  provided,  that  the  process  to  enforce  obedience  to  the  war- 
rants, sentences  and  orders,  concerning  any  matter  or  thing  cog- 
nizable in  the  said  court,  shall  be  by  imprisonment,  and  seques- 
tration, as  fully  as  any  court  of  equity  may  or  can  do.  Appeals 
lie  from  their  decrees  and  sentences  to  this  court;  and  the  Orphan's 
Court,  in  matters  within  their  jurisdiction,  proceed  on  the  same 
principles  as  a  Court  of  Equity.  Guier  v.  Kelly,  2  Binn  299. 
The  principle  on  which  I  hold  the  s'entence  or  decree  of  the 
Orphan's  Court,  conclusive,  is,  that  it  is  a  general  rule  of  our  law 
that  where  any  matter  belongs  to  the  jurisdiction  of  one  court  so 
peculiarly,  that  other  courts  can  only  take  cognizance  of  the  same 
subject,  incidentally  and  indirectly,  the  latter  are  bound  by  the 
sentences  of  the  former  and  must  give  credit  to  it.  This  deference 
is  properly  shown  by  those  who  have  not  the  authority  directly 


xliv  APPENDIX. 

or  earprofesso,  but  only  by  accident  and  collaterally.  It  would  be 
a  great  waste  of  time  to  refer  to  the  various  decisions  to  support 
a  position  so  undeniable  and  a  rule  so  universal;  those  who 
are  curious  to  examine  the  subject,  I  refer  to  Hargrave's  Law 
Tracts,  451. 

Such  a  sentence  as  the  one  we  are  considering  is  definitive — 
it  passes  in  rem  judicat am — the  thing  is  finally  judged,  not  with- 
out appeal,  for  that  is  given  to  this  court;  but  we  are  not  reviQW- 
ing  an  appeal  from  this  sentence,  but,  as  a  court  of  error,  the  de- 
cree of  a  court  of  Common  Pleas,  which  had  not  a  direct  cogni- 
zance of  the  subject. 

It  is  a  proceeding  purely  in  rem  against  the  estate  of  the  in- 
testate, and  not  in  personam.  So  much  is  i|  a  proceeding  against 
his  estate,  that  it  overrules  the  lien  of  a  judgment.  The  estate 
was  condemned  to  a  sale,  and  may  well  be  compared  to  a  con- 
demnation of  goods  by  a  court  of  exchequer,  whose  condemnation 
is  final  in  an  action  bought  to  try  the  right  of  the  goods.  Roberts 
Con.  Bull.  JV.  P.  244.  Scott  vs.  "Shearne  and  AL  *  Wm.  Bl.  977. 
The  condemnation  divests  the  property — I  mean  the  title  of  de- 
ceased. 

The  sentence  of  a  foreign  court  of  admiralty  condemning  pro- 
perty as  prize,  is  received  as  conclusive  evidence  not  only  as  to 
its  direct  effects,  but  also  as  to  the  facts  directly  decided  by  it. 
It  required  legislative  alteration,  and  our  legislature  by  Act  29th 
March,  1809,  provided  '  that  no  sentence,  judgment,  or  decree 
of  any  court,  exercising  jurisdiction  of  prize,  shall  be  conclu- 
sive evidence  of  any  fact,  matter,  or  thing,  therein  contained,  ex- 
cept of  the  acts  and  doings  of  such  tribunals;'  but  well  informed 
of  the  mischief  of  impairing  the  effects  of  the  sentence  on  the  pro- 
perty condemned,  carefully  declares  '  that  nothing  contained  in 
the  act  shall  impair  or  destroy  the  effects  of  any  such  sentence  on 
the  property  afteeted  or  intended  -to  be  affected  thereby;  but  the 
same  shall  be  and  remain  as  if  the  act  had  never  been  made.  The 
matter  which  gives  the  Orphan's  Court  jurisdiction  is  the  death  of 
the  owner  intt-state,  for  if  the  administration  was  taken  out  on  the 
effects  of  a  living  man  or  of  one  who  died  testate,  the  administra- 
tion itself  would  be  void,  and  there  could  be  no  administrator  to 
act,  no  party  before  the  court,  consequently  all  the  proceedings 
would  be  null.  When  an  executor  obtained  payment  on  a  pro- 
bate of  a  void  will,  without  suit,  it  could  not  be  impeached  not- 
withstanding the  probate  was  afterwards  declared  null,  it  being 
paid  on  the  faith  of  the  act  of  a  judicial  tribunal  having  competent 
jurisdiction.  Toll.  Ex.  51.  The  distinction  in  this  respect  is  this: 
a  probate  of  the  will  of  a  living  person  or  a  letter  of  administration 
on  his  effects,  where  the  person  is  dead,  but  left  a  will,  then  all 
is  void  ipso  facto,  because  no  jurisdiction;  but  where  the  person  is 
dead  intestate,  the  Orphan's  Court  have  power  over  his  estate, 
and  any  one  acting  on  the  faith  of  their  judicial  acts  will  be  pro- 
tected in  obeying  them.  The  well-known  distinction  between 


APPENDIX.  xlr 

erroneous  acts,  or  judgments  of  a  tribunal  having  cognizance  of  the 
subject  matter,  and  of  a  tribunal  having  none  such,  is  illustrated 
in  Griffith  v.  Fmzer,  8  Cranch  25.  That  was  a  case  of  the  sale 
of  a  real  estate  on  a  judgment  against  an  administrator  durante 
absentia  of  an  executor.  It  was  there  decided  that  the  sale  was 
void,  because  the  administration  was  void  ab  initio,  and  the  vali- 
dity of  the  sale  rested  on  this,  whether  the  defendant  was  admi- 
nistrator or  not  of  the  debtor;  it  was  ruled  he  was  not,  and  that 
being  void,  all  the  acts  were  void;  and  the  chief  justice  put,  by 
way  of  illustration,  the  case  of  administration  to  a  living  man; — 
this  is  totally  void,  i^  was  not  within  the  jurisdiction  of  the  ordi- 
nary; it  was  no,t  committed  to  him  by  law;  it  was  a  case  in  which 
he  had  no  right  to  deliberate;  no  one  representing  the  estate  was 
in  the  case,  or  before  the  court;  consequently  their  judgment  did 
not  bind  that  estate;  but  there  had  been  a  real  though  erroneous 
judgment,  which  would  justify  the  sheriff  in  levying  on  the  land; 
the  sale  would  have  been  good;  but  the  execution  issued  on  a 
judgment,  that  was  a  nullity.  Now,  the  order  of  sale  would  justify 
the  administrators,  they  would  not  be  wrong-doers  in  entering  and 
making  sale  on  the  premises. 

These  rules  would  apply  more  properly  and  peculiarly  to  sales 
by  order  of  the  Orphan's  Court,  than  to  the  various  instances  to 
which  they  have  been  applied.  It  is  a  common  and  usual  mode 
of  sale,  fewer  sacrifices  made  than  at  sheriffs'  sales,  and  less  ex- 
pensive, with  an  equitable  power  in  the  court  to  confirm  or 
reject  them  as  justice  may  require,  proceeding,  as  this  court 
always  does,  on  principles  of  equity;  but  it  never  could  be  im- 
posed as  a  duty  on  the  purchasers  at  the  end  of  twenty  years,  to 
prove  the  observance  of  every  direction  of  the  acts;  as  for  instance, 
who  put  up  the  advertisement:  It  never  can  be  that  the  title  of 
a  fair  purchaser  should  depend  <jn  such  perishable  testimony. 

If  (and  it  is  the  best  and  fairest  guide,)  it  is  to  be  considered 
as  it  would  be  if  the  Orphan's  Court  was  a  court  of  Chancery,  and 
had  made  this  decree,  and  a  fair  sale  had  been  made,  and  the 
decree  executed  by  a  conveyance  from  administrators,  would  the 
purchaser  be  bound  to  look  beyond  the  decree,  if  the  facts  neces- 
sary to  give  the  court  jurisdiction  appear  on  its  face,  that  is,  that 
there  are  debts,  children  to  maintain,  and  not  sufficient  personal 
estate  for  both  these  purposes?  _  If  such  a  purchaser  is  not  pro- 
tected then,  as  was  said  by  the  Lord  Keeper,  in  Windham  v.  Wind- 
ham,  5  Ch.  Rep.  12.  where  a  like  attack  was  made  on  a  sale  under 
decree  of  a  court  of  Chancery,  'you  blow  up  with  gun -powder  the 
whole  jurisdiction,'  and  here,  if  the  protection  be  denied  to  honest 
purchasers, you  lay  a  train  of  gun-powder  through  the  whole  state, 
and  this  decision  would  be  a  signal  to  set  fire  to  it; — for  nothing 
has  been  more  irregular  than  the  practice  of  these  courts  generally, 
there  may  be  exceptions,  but  very  rare.  These  orders  depend  on 
loose  scraps  of  paper  deposited  in  untitled  pigeon-holes,  or  packed 


xlvi  APPENDIX. 

up  as  useless  lumber  in  old  trunks;  and  when  to  this,  is  added,  and 
it  is  a  sore  evil  under  the  sun,  their  transmission  from  hand  to 
hand,  as  the  clerks  of  these  courts  are  moved  oft'  the  stage  in  rapid 
succession,  this  would  render  this  species  of  title  so  precarious 
and  insecure,  that  if  at  the  end  of  thirty  years,  or  perhaps  more, 
the  purchaser  was  bound  to  produce  every  inventory,  statement 
or  return  of  sale;  no  man,  ne  prudent  man  would  buy  at  such 
sales.  In  some  counties  I  would  not  take  50  per  cent,  to  secure 
the  purchasers.  Nothing  so  much  requires  legislative  attention 
as  the  proceedings  in  the  Orphan's  Courts,  for  as  sure  as  we  de- 
scend into  our  graves,  so  sure  into  this  court  we  must  come;  and 
the  man  would  be  a  real  public  benefactor  who  would  devise  set 
forms,  and  furnish  directions  in  conducting  the  vast  business  in 
these  courts  where  we  eve'ry  day  find  so  deplorable  a  systewi  of 
confusion. 

Whenever  the  sales  are  called  in  question,  we  find  the  courts 
declaring,  these  irregularities  must  be  overlooked:  after  a  lapse 
ef  years  all  must  be  presumed  to  be  solemnly  transacted,  presump- 
tions made  in  favour  of  what  does  not  appear.  Messinger  v.  R'int- 
ner,  4  Binn  105.  The  presumption  always  is  that  they  are  regu- 
lar, and  it  lies  on  the  party  impugning  them  to  show  their  irre- 
gularity; even  so  far  has  liberality  been  carried,  that  parole  evi- 
dence was  received  of  a  sale  which  had  not  been  returned. 
Rham  v.  North,  I  Yeates  118;  and  Mr.  Justice  Yeates  with  an 
experience  of  fifty  years  in  the  business  of  the  Orphan's  Court, 
and  whose  knowledge  of  the  mode  of  conducting  it  was  greater 
than  any  one  m^an  living  or  dead  possessed,  in  Snyder's  less.  v. 
Snyder,  6  Binn  496,  exclaims, '  What!  shall  purchasers  be  affect- 
ed by  the  unskillfulness  or  negligence  of  the  proper  officers?"  A 
substantive  compliance  only,  with  the  act  is  required.  If  it 
appears,  on  the  facts  disclosed,  to  the  Orphan's  Court,  that  the 
debts  cannot  be  paid,  and  the  children  brought  up,  without  selling 
the  land,  and  they  are  fully  satisfied  on  these  points,  their  power 
is  called  into  full  exercise.  The  court  in  this  instance  was  fully 
satisfied  of  these  facts.  If  the  purchaser  was  responsible  for  the 
mistakes  of  the  court  in  point  of  fact,  if  after  they  had  judged  on 
the  facts  and  acted  upon  them,  these  sales  would  be  snares 
for  honest  men.  Where  there  were  debts/- as  it  is  not  denied 
but  that  there  were,  the  administrators  represented  the  real 
estate,  and  the  purchaser  holds  the  land,  sold  by  order  of  the 
Orphan's  Court,  discharged  of  the  lien  of  the  judgments  against 
the  deceased.  4  Ball  119.  The  proceedings  are  always  against 
the  administrators  to  compel  a  judicial  sale,  and  never  against  the 
heir  or  terretenant.  1  Yeates  238.  1  Peter's  Rep.  273.  2  Sergt.  and 
R.  377.  2  Crunch  458.  The  surplus,  after  discharging  the  judg- 
ments, goes  into  the  administrators  hands,  payment  Jo  him  is 
good  unless  notice  be  given  to  the  sheriff',  and  the  money  ordered 
to  be  paid  into  court.  If  the  order  of  sale  is  to  be  considered  as  a 

- 


APPENDIX.  xlvii 

proceeding  in  Chancery,  which  I  think  it  is,  the  petition  of  the 
administrator  is  considered  as  a  bill  in  Chancery,  in  which,  by  the 
Act  of  Assembly,  he  is  the  sole  party  representing  the  estate.  It 
is  very  important  to  see  how  purchasers,  under  an  order  of  sale, 
by  a  court  of  Chancery,  stand,  where  sales  can  only  be  resorted 
to,  for  payment  of  judgment  creditors,  in  default  of  personal  estate. 
There  the  heir  is  the  party,  the  administrator  representing  the  per- 
sonal estate.  A  purchaser  under  the  decree  is  never  affected  by  even 
a  palpable  error  in  the  decree,  e.  g.  in  not  giving  day  to  a  judg- 
ment creditor,  to  shew  cause,  or  in  directing  too  much  to  be  sold, 
or  in  decreeing  a  sale  to  satisfy  judgment  debts  without  an  account 
of  the  personal  estate.  On  a  full  examination  of  the  chancery 
authorities,  without  going  through  a  tedious"  detail,  this  is  very 
much  the  doctrine  and  the  language  of  the  chancellors.  '  A  pur- 
chaser is  not  bound  to  look  into  all  the  circumstances,  nor  to  go 
through  all  the  proceedings,  from  beginning  to  end;  on  the  con- 
trary, the  general  impression  the  decisions  give,  is  this,  that  a  pur- 
chaser has  a  right  to  presume  that  the  court  have  taken  the  neces- 
sary steps  to  investigate  the  rights  of  the  parties,  and  that  it  has 
on  that,  investigation  properly  decreed  a  sale.  Then  he  is  to  see  that 
all  proper  parties  are  before  the  court;  and  he  is  further  to  see, 
that  in  taking  the  conveyance  he  takes  a  title  that  cannot  be  im- 
peached aliunde;  and  he  has  no  right  to  call  on  the  court  to  pro- 
tect him  from  a  title,  not  at  issue  in  the  cause.  Although  the  de- 
cree may  be  erroneous,  the  title  of  the  purchaser  ought  not  to  be 
affected.  And  why?  Because,  as  the  chancellors  say,  '  it  would 
introduce  great  doubts  in  sales  made  by  the  authority  of  that 
court,  which  would  be  highly  mischievous.  This  is  the  present 
doctrine  of  the  court  of  Chancery,  but  the  principle  is  not  modern; 
in  Kitely  v.  Lamb,  2  Ch.  R.  405,  where  a  bill  was  filed,  praying, 
that  a  sum  of  money  in  the  hand  of  a  trustee,  might  be  laid  out 
for  the  benefit  of  the  plaintiff,  the  bill  was  dismissed,  and  the  de- 
cree of  dismissal  signed  and  enrolled,  after  which,  the  trustees 
paid  the  money  to  the  other  party  who  had  claimed  it.  On  a  bill 
of  reviver,  that  decree  was  reversed,  yet  the  court  determined, 
that  in  regard  they  had  relied  upon  the  dismission,  signed  and 
enrolled,  they  were  indemnified  thereby,  and  that  the  plaintiff 
should  be  put  to  seek  his  money  against  the  person  to  whom  the 
trustees  had  paid  it,  on  the  ground  that  whilst  the  judgment  re- 
mained in  force  it  barred  the  right,  and  justified  the  parties, 
though  they  paid  it  voluntarily,  and  without  suit.  The  purchaser 
is  not  bound  to  see  further  back  than  the  order  of  the  court/  he  is 
not  to  see  whether  the  court  was  mistaken  in  the  facts,  of  debts, 
and  children;  his  contract  is,  in  truth,  with  the  court;  and,  in  fact 
we  must  come  to  the  point,  that  the  purchaser  has  as  little  to  do 
with  the  irregularities  of  the  proceedings  as  if  it  had  been  a  sale 
for  a  debt  of  intestate  on  a  judgment  against  administrator,  by  the 
sheriff  holding  a  venditioni  exponas,  in  which  case,  though  the 
debt  has  been  paid,  and  nothing  was  due,  still  the  defendants  or 
the  heirs  of  the  intestate,  have  no  right  against  the  purchaser;  a 
stranger  to  the  proceedings,  could  not  be  permitted  to  prove  that 


xlviii  APPENDIX. 

fact,  or  if  he  did  prove  it,  or  if  the  judgment  was  reversed  for  any 
error,  could  it  affect  the  purchaser? 

Nothing  would  create  a  pause  in  my  mind,  or  hesitancy  in  my 
judgment,  unless  it  be  the  reluctance  I  should  feel  in  overturning 
former  decisions.  I  know  an  impression  has  prevailed,  that 
these  irregularities  can  be  inquired  into  in  ejectment,  and  some 
dicta,  at  Nisi  Prius,  are  found  in  the  books  to  favour  that  im- 
pression. A  very  eminent  judge,  of  the  present  day,  has  said,  that 
he  wished  there  had  never  been*  a  Nisi  Prius  case  reported;  and 
surely  our  decisions  ought  not  to  be  governed  by  them,  unless,  by 
a  series  of  determinations  they  have  ripened  into  law;  and  if  they 
are  not  supported  by  law  and  reason,  the  convenience  of  man- 
kind requires  that  Our  decisions  should  not  be  governed  by  them. 
One  thing  I  may  venture  to  assert  without  the  hazard  of  contra- 
diction, that  there  has  been  no  solemn  determination  by  this  court, 
of  this  very  question;  I  therefore  consider  it  as  an  open  one.  No 
sale  ever  has  been  declared  void,  in  ejectment  against  a  purchaser 
bona  fide,  for  any  of  the  alledged  irregularities,  or  because  the 
decree  of  the  court  was  founded  on  a  mistake.  The  case  of 
Larrimer  v.  Erwin  was  at  Nisi  Prius,  and  the  report  of  that  case 
warns  us  against  confiding  in  these  decisions.  I  have  a  proper 
respect  for  judicial  decisions  where  it  is  clearly  ascertained  what 
they  are,  but  where  they  depend  on  memory  or  such  indistinct 
evidence  as  to  leave  it  doubtful,  they  have  with  me  little  weight, 
when  they  are  at  variance  with  the  soundest  principles  of  policy 
and  justice.  The  chief  justice  cited  it  in  Messenger  v.  ICintner, 
and,  as  afterwards  explained  by  him,  in  Hucfcle  and  Wife  v. 
Phillips,  2  Sergt.  and  R.  7,  the  court  did  not  rely  solely  on 
the  non-settlement  of  the  accounts,  but  on  the  circumstances,  par- 
ticularly on  this,  that  before  the  purchaser  had  paid  his  money, 
the  administrator  had  settled  his  account,  by  which  it  appeared 
there  was  a  surplus  in  his  hands  after  payment  of  all  debts;  and 
Mr.  justice  Yeates  treats  that  case  with  little  regard.  He  says,  in 
Snyder  vs.  Snyder,  6  Sinn.  497, '  if  that  decision  were,  that  a  sale 
was  void,  merely  because  an  administration  account  had  not  been 
settled,  he  could  not  assent  to  it.  Nineteen  out  of  twenty  sales 
would  be  rendered  void,  should  the  doctrine  be  established.'  And 
with  strong  emphasis  he  asserts,  "  that,  the  decree  of  an  Orphan's 
Court,  in  a  case  within  its  jurisdiction,  is  reversible  on  appeal, 
and  not  collaterally  in  another  suit."  In  Messenger  v.  ICintner, 
the  court  did  inquire  into  the  proceedings  of  the  Orphan's  Court, 
because  there  they  considered  the  decree  as  a  mere  nullity  on  its 
face.  It  purported  to  be  the  partition  and  valuation  of  a  man's  lands; 
it  was  a  proceeding  against  his  estate,  and  not  the  estate  of  his 
father,  in  which  he  was  alledged  to  be  bound  by  proceedings  un- 
sanctioned  by  law  or  justice,  where  neither  he,  nor  his  guardian,  or 
ijext  friend  was  a  party,  it  was  all  coram  non  judice,  and  tainted 
with  fraud,  which  would  vitiate  the  most  solemn  acts?  I  do  not 
quarrel  with  this  decision — it  does  not  come  in  my  way.  When  the 
decree  in  Fullertori's  Case,  at  Nisi  Prius,  at  Chambersburg,  was 
assailed  on  the  ground,  that  there  were  only  debts,  and  no 


APPENDIX. 

younger  children,  it  was  sustained;  4  Dall.  451,  4  Yeates  523,  and 
in  Sham  v.  North,  before  Yeates  and  Smith,  justices,  at  Nisi 
Prius  at  Harrisburgh,  where  the  order  required,  no  return  of  sale, 
and  none  was  made,  a  sale  proved  by  parole  was  supported;  and 
so  in  Huckle  and  Wife  v.  Philips,  2  Sergt.  and  Rawle  4,  a 
decree  of  sale  on  the  ground  of  maintenance  of  a  child  only,  was 
held  good,  although  former  sales  for  payment  of  debts;  and  in 
Bickel  v.  Young,  3  Sergt.  and  R.  where  the  whole  proceedings 
and  sale  were  conducted  in  the  name  of  one  administrator  only, 
when  there  were  two,  and  in  Snyder  v.  Snyder,  the  same  objec- 
tion was  made  and  did  not  prevail.  These  are  all  the  reported 
cases  and  yet  the  purchaser  has  been  hitherto  protected  except  in 
Larrimer  v.  Invin,  the  circumstances  of  which  are  not  stated. 
In  the  case  of  Davis  v.  Huston,  2  Yeates  289,  the  lands  of  the  in- 
testate had  been  valued  under  a  decree  of  the  Orphan's  Court, 
and  taken  at  the  valuation  by  a  putative  daughter,  and  sold  by 
her,  and  the  purchaser  set  up  her  illegitimacy  as  a  defence  against 
the  payment  of  the  purchase  money,  and  this  defence  prevailed. 
There  was  in  Messenger  v.  Kintner,  a  proceeding  against  the 
estate  of  the  heir,  and  riot  of  the  ancestor,  and  in  fact  it  was  a  con- 
troversy between  the  legitimate  and  illegitimate  child,  and  against 
such  estoppel,  we  have  seen  from  Carter's  Reports,  equity  would 
relieve.  It  is  true  that  the  chief  justice,  in  Snyder  v.  Snyder, 
spoke  of  a  long  practice  of  inquiring  into  these  proceedings  in 
actions  of  ejectment,  acknowledging  its  inconvenience.  So  far  as 
these  irregularities  go  to  show  a  fraud,  or  to  corroborate  other 
proof  of  a  fraud  I  agree.  Mr.  Justice  Yeates  took  a  view  of  the 
subject  which  meets  my  assent  and  approbation,  and  I  cannot 
give  his  conclusion  better  than  in  his  own  words.  "  1  consider  the 
general  remark  to  be  correct,  that  the  decrees  of  the  Orphans' 
Court,  in  a  case  within  their  jurisdiction,  is  reversible  only  on 
appeal,  and  not  collaterally  in  another  suit.  The  settled  rule  is, 
that  the  merits  of  a  judgment  can  never  be  contested  in  an  ori- 
ginal suit  either  in  law  or  equity,  2  Burr  1009.  The  maxim  is 
de  fide  et  qfficio  judicis  non  recipitur  questio.  Hard  127.  The 
defendant  in  error  in  Messenger  v.  Kintner,  a  minor,  somewhere 
about  nine  years  of  age,  was  attempted  to  be  bound  by  proceedings 
unsandtioned  by  law  and  justice,  to  which  neither  he,  nor  his 
guardian,  or  next  friend,  were  parties;  it  vas  res  inter  olios  acta, 
and  no  presumption  could  be  made  in  favour,  of  what  was  done. 
I  assimilate  the  present  case  to  a  sheriff's  selling  land  which  he 
has  taken  in  execution  by  process  of  law.  The  judgment  con- 
cludes all  irregularities  in  the  previous  proceedings,  except 
where  the  plaintiff  in  the  execution  becomes  the  purchaser, 
Goodyer  v.  Junce,  Yelvert  79,  but  the  sale  must  be  fair  and 
just,  uninfluenced  by  threats  or  violence.  Here  the  lands  have 
not  be§n  aliened  by  the  first  purchaser,  but  remain  in  his 
children,  whose  guardians  have  leased  to  the  defendant.  The 
true  merits  of  the  case  rest  on  the  honesty  and  fairness  of 
the  public  sale,  and  may  be  fully  contested  in  the  present  suit." 

7 


xlix  APPENDIX. 

6  Binn  499.  It  gives  me  additional  confidence  in  the  opinion  I 
have  formed,  to  find  the  chief  justice  in  considering  the  question 
again,  in  Selin  v.*  Snyder,  7  Sergt.  and  R.  166,  which  was  the 
same  as  Snyder  v.  Snyder,  new  parties  being  added,  declaring, 
"  that  the  Orphan's  Court  were  acting  within  their  jurisdiction. 
They  had  power  to  receive  and  grant  the  order  for  the  sale  of  John 
Snyder's  estate,  and  therefore  what  is  averred  on  the  record  can- 
not be  contradicted.  The  sale  may  be  avoided  if  unfairly  made, 
but  the  assertion  in  the  record,  that  the  parties  appeared  in 
court,  must  be  taken  to  be  an  absolute  verity."-"  The  purchaser  is 
bound  to  look  to  the  jurisdiction  of  the  Orphan's  Court,  and,  in 
some  instances,  the  validity  of  the  proceedings  has  been  contested 
in  the  courts  of  common  law.  But  the  truth  of  the  records  con- 
cerning matters  within  their  jurisdiction  cannot  be  disputed*" 
And  again,  in  the  Supreme  Court  at  Philadelphia,  in  December  last, 
in  Kennedy  v.  Wachsmuth,  he  repeated  this  well  settled  principle. 
The  court  has  here  decided,  that  there  were  debts,  and  children 
to  support,  and  no  personal  estate  to  pay  the  debts,  and  support 
the  children,  and  on  that  state  of  adjudged  facts  they  decree  a 
sale.  Beyond  the  decree,  the  purchaser  is  not  bound  to  look.  The 
inquiries  upon  an  ejectment  are:  Was  there  an  administrator,  and 
order  to  sell,  such  as  would  authorize  the  Administrator  to  make 
sale,  was  the  sale  fair?  The  irregularities  or  mistake  of  facts 
after  sale  confirmed,  money  paid,  conveyance  executed,  possession 
for  20  years,  improvements  of  twenty  times  the  value  of  the  pro- 
perty, fair  purchasers  deriving  the  title  by  subsequent  convey- 
ances, cannot  affect  the  purchasers.  These  objections,  on  the 
return  of  the  sale,  might  and  probably  would  have  been  sus- 
tained by  the  Orphan's  Court;  but  these  and  all  the  other  errors 
noticed  by  counsel  of  plaintiff  in  error,  ought  not  to  overturn  these 
fair  and  honest  proceedings  and  sales.  I  have  not  concluded  it 
necessary  to  go  into  detail  on  the  various  errors  assigned.  The 
present  opinion  in  its  general  scope  embraces  the  whole  of  them, 
and  though  there  may  be  some  abstract  opinions  of  the  court,  to 
which  I  cannot  accede,  yet,  as  in  the  main  the  charge  is  right, 
there  can  be  no  rtason  for  reversing  the  judgment.  If  there  were 
irregularities  as  to  the  advertisement,  that  was  error  of  judgment 
of  the  administrators.  Where  there  was  no  fraud  intended,  and 
where  the  proceedings  were  intended  to  be  fair  and  regular,  they 
ought  not  after  the  confirmation  by  the  Orphan's  Court,  and  so 
long  an  acqiescence,  to  be  overthrown,  to  the  injury  of  subsequent 
bona  fide  purchasers. 

It  was  insisted  that  whatever  might  be  the  fate  of  the  first  sale, 
the  second  was  clearlj  void.  I  cannot  distinguish  them.  The 
act  of  1794,  under  which  they  were  made,  provides  that  the  Or- 
phan's Court  may  from  time  to  time  order  sales,  for  payment  of 
debts,  maintaining  the  children,  and  improving  the  residue,  the 
purpose  is  joint;  if  the  first  does  not  produce  a  sufficient  sum  for 
all  the  purposes,  the 'order  may  be  renewed  until  all  the  purposes 


APPENDIX.  1 

are  satisfied,  all  will  be  considered  as  one  transaction,  and  this 
was  decided  in  Huckle  and  Wife  v.  Phillips. 

The  doctrine  I  advance  is,  that  where  there  is  a  direct  sentence 
on  the  very  point,  s'uch  is  to  be  received  as  conclusive  evidence 
not  to  be  impeached  from  within,  but  like  all  other  acts  of  the 
highest  judicial  authority  is  impeachable  from  without;  and  though 
it  is  not  permitted  to  show  that  the  court  was  mistaken  in  the 
original  action,  it  may  be  shown  that  they  were  misled  by  some 
collusive  act  between  the  parties;  and  this  was  decided  by  the 
opinion  of  all  the  judges  in  England,  in  the  duchess  of  Kingston's 
trial  in  the  house  of  Lords.  9  State  Trials,  268.  Collusion  being 
a  matter  extrinsic  of  the  cause  may  be  gone  into  by  a  stranger  and 
tried  by  a  jury;  it  might  be  here  inquired  into,  whether  there  was 
collusion  between  the  administrators  and  the  first  purchasers  in, 
obtaining  this  decree;  but  that  is  not  pretended.  Thorc  is  a  common, 
mistake  of  all,  at  least  of  one  of  the  administrators,  of  the  court, 
and  of  the  purchasers — a  mistake  arising  out  of  an  unknown  fact 
which  took  place  in  a  foreign  country.  A  man  is  chargeable  for 
goods,  sold  to  a  woman,  whom  he  represents  as  his  wife,  though 
they  are  not  in  fact  married. 

One  more  authority  I  add, Commth.V.  Greenwood,  Turnpike  Co. 
1  Cont.  R.  1.  7.  Twrw^M^justice,  in  delivering  the  opinion  of  the 
court  said,  "  a  judgment,  decree,  sentence  or  order,  passed,  by  a 
competent  jurisdiction,  which  creates  or  changes  a  title  or  any 
interest  in  estate  real  or  personal,  or  which  settles  and  deter- 
mines a  contested  right  or  fixes  a  duty  on  one  of  the  parties  liti- 
gant is  not  only  final  as  to  the  parties  themselves  and  all  claim- 
ing under  them,  but  furnishes  conclusive  evidence  to  all  mankind, 
that  the  right,  interest,  or  duty,  belongs  to  the  party  in  whom  the 
court  adjudged  it."  The  Orphan's  Court  had  authority  to  direct 
the  administrators  to  mortgage  for  payment  of  debts,  and  support 
of  children,  not  exceeding  one  third  the  value  of  the  estate.  Now, 
if  instead  of  a  sale,  money  had  been  taken  upon  mortgage,  fairly 
applied  by  the  administrators,  could  it  be  endured,  that  tne  mort- 
gagee should  lose  his  money,  advanced  on  the  faith  of  a  decree  to 
which  all  are  bound  to  give  credit,  because  it  afterwards  turned 
out  in  point  of  fact,  that  the  intestate  had  a  wife  in  Ireland,  and 
his  children  were  illegitimate,  and  that,  though  there  were  debts 
to  pay,  of  intestate?  No  honest  and  intelligent  man,  lawyer  or 
layman,  would  hesitate  to  give  an  answer;  that  answer  would  be, 
justice  forbids  this.  If  it  were  not  that  some. former  decisions,  at 
Nisi  Prius,  had  mutilated  the  uniformity  of  the  -law,  relating  to 
decrees  for  sale, — sales  executed,  and  confirmed  by  the  court, 
would  be  sustained,  according  to  the  universal  rule  governing  the 
sentences  of  every  court  of  record,  when  acting  within  its  juris- 
diction. The  determination  of  this  court,  in  the  recent  case  .of 
Selin  v.  Snyder,  has  restored  the  law,  by  declaring  that  testimony 
shall  not  be  received  to  contradict  the  record.  The  error  assigned 
was  not  a  mere  formality,  but  a  vital  object,  a  charge  that  the  pro- 
ceedings were  conducted  against  the  consent  of  the  administratrix, 
the  mother  of  the  children  of  John  Snyder.  It  is  impossible  to 


li  APPENDIX. 

\ 

distinguish;  the  cases  in  principle  are  the  same,  for  if  it  were  per- 
mitted to  falsify  in  uno,  it  would  be  permitted  to  falsify  in  omnibus. 
The  strongest  possible  case  is  that  cited  in  10.  Vin.  Tit.  Record  C. 
pi.  2.  from  Br.  E.  pi.  78.  "  Record  of  outlawry  of  divers  persons, 
was  certified  in  the  exchequer,  among  whom,  one  was  certified 
outlawed,  and  was  not  outlawed,  and  that  his  goods  forfeited,  were 
in  the  hands  of  I.  N.  and  upon  process  made  against  him,  he  came 
and  said  he  was  not  outlawed;  and  parcel  of  the  record  came  by 
chancery,  out  of  B.  R.  into  the  exchequer;  and  Green,  justice  "of 
B.  R.  came  into  the  exchequer,  and  said  he  was  not  outlawed, 
but  that  it  was  misprision  of  the  clerk;  Skipwith  said,  Though 
all  the  justices  would  record  the  contrary,  they  shall  not  be 
credited,  when  we  have  recorded  that  he  is  outlawed.  Quere: 
What  remedy  is  for  the  party?  It  seems  it  is  by  writ  of 
error,  inasmuch  as  there  is  no  original  against  him,  but  only 
record  of  outlawry  without  original.  Br.  Record,  pi.  49.  And  in 
the  same  book,  pi.  4.  cites  Br.  Err.  pi.  78.  It  is  said,  the  diversity 
is  this,  that  a  man  may  assign  error  on  a  thing  seperate  or  out  of 
the  record,  but  he  cannot  falsify  it."  The  decision  in  Selin  v. 
Snyder,  impresses  the  decree  with  the  seal  of  inviolability,  where 
a  fair  and  bona  fide  purchaser  claims  under  it,  where  it  was  a  duty 
for  the  court  to  decree  and  where  the  decree  states  such  facts,  as 
give  the  court  authority  to  make  the  order  of  sale.  Cases  of  indi- 
vidual hardship  may  arise  from  adhering  to  this  principle,  but  the 
old  maxim  of  law  is,  that  a  private  mischief  shall  be  rather  suffer- 
ed, than  a  public  inconvenience,  and  this  is  applied  to  all  public 
sanctions  in  government  and  legislation,  and  it  never  can  be  more 
safely  applied,  than  to  the  sanction  of  judicial  sales;  and  if  these 
purchasers  are  not  protected,  but  remain  open  to  inquiries  as  to 
the  regularity  and  exactness  of  the  proceedings  of  this  tribunal, 
this  useful  power  will  be  disused,  and,  in  time,  abolished.  I  have 
stated  what  I  conceive  to  be  the  legal  and  fundamental  rules  of 
property,  and  if  the  question  was  to  be  decided,  by  appeal,  to 
plain  common  sense,  its  verdict  would  be  the  same  as  the- judg- 
ment of  the  law.  On  the  view  1  have  taken  of  this  case  I  have 
not  thought  it  necessary  to  dwell  mu'ch  on  the  minor  objections: 
they  are  absorbed  in  the  great  question,  the  final  decision  of  the 
cause  rests  on  that,  and  it  is  of  consequence  it  should  so  rest. 
All  others  sink  into  insignificance,  but  the  groat  question  of  the 
collusiveness  of  these  decrees,  for  sale  by  order  of  the  Orphan's 
Court,  required  an  unequivocal  determination.  It  is  one  on  which 
the  title  to  so  many  estates  depends,  that  it  could  not  without  great 
mischief  and  inconvenience  be  postponed,  and  it  would  be  un- 
worthy to  evade  it;  it  is  on  that  ground  also  I  wish  to  be  dis- 
tintly  understood  that  the  judgment  is  affirmed.  I  consider  the 
ruje  as  one  of  the  indelible  land  marks  of  property,  invariably 
established  by  the  well-weighed  policy  of  the  law,  and  has  stood 
the  test  of  ages,  founded  on  the  great  principle  of  public  conve- 
nience, and  necessity,  and  ought  not  to  be  shaken  by  any  acci- 
dental mischief  to. an  individual,  which  occasionally  will  occur 


APPENDIX.  Hi 

from  every  general  rule.  This,  like  other  general  principles,  may 
produce  disadvantages  unjustly  to  an  individual,  but  it  is  on  this 
condition  that  general  rules  are  adopted,  partial  inconvenience  is 
the  inevitable  consequence,  but  the  production  of  general  good 
authorizes  the  establishment;  '  partial  evil  is  universal  good.' 
But  the  hardship,  if  consideration  of  hardship,  ought  ever  to  mingle 
in  the  administration  of  justice,  would  fall  on  the  defendants. 
The  Irish  heirs  never  dreamed  of  this  inheritance,  it  was  to  them 
totally  unexpected,  they  never  calculated  or  acted  upon  it  as  a 
right  which  might  descend  on  them,  it  was  a  mere  windfall,  as 
little  looked  for,  as  the  descent  of  the  imperial  crown  on  their 
heads,  and  as  much  a  surprise,  to  them  it  would  be  no  disappoint- 
ment. But  the  defendants  have  laid  out  the  labour  of  their  lives 
upon  it,  have  looked  up  to  it  as  their  support  during  life,  and  pro- 
vision for  their  children  on  their  death;  they  have  considered  it 
as  their  own;  all  their  plans  and  habits  of  life  have  been  formed 
in  the  full  belief  of  enjoying  that  which  they  had  fairly  acquired 
on  the  faith  of  a  judgment  of  a  court  having  authority.  And,  as  it 
respects  the  present  plaintiff,  what  grievance  has  he  to  complain 
of,  except  the  baffled  expectation  of  an  iniquitous  speculation,  and 
except  that  he  is  not  suffered  to  sell  the  very  hands  that  fed  him, 
and  is  disappointed  in  the  premium  he  expected  from  stigmatizing 
publicly  his  mother,  and  defiling  his  own  nest?  It  maintained  and 
educated  him,  it  supported  his  mother  and  sister;  and  the  reserved 
part  of  the  lot,  rendered  valuable  by  the  money  of  the  defendants, 
he  still  enjoys — he  holds  the  worth  of  his  money.  One  thing  is 
very  plain,  that,  either  the  real  value  was  concealed  from  the  Irish 
heirs,  or  they  from  a  sense  of  justice  to  the  purchasers,  or  huma- 
nity to  the  plaintiff,  parted  with  it  for  its  value  as  it  stood  at  the 
death  of  the  intestate;  if  the  state  of  improvements  had  been  com- 
municated to  them,  then  they  conveyed  to  him  as  the  natural  heir, 
or  as  trustee  for  the  purchasers.  Considerations  of  hardship  are  of 
little  value;  courts  of  justice  do  not  sit  to  inquire  how  the  loss  of 
property  may  press  on  this  indivdual,  or  that,  who  has  held  it 
without  title;  the  usual  subject  of  consideration  for  the  court,  is, 
whether  it  has  been  held  without  title,  and  if  they  find  that  it  has, 
to  restore  it  without  delay,  to  the  right  owner.  There  is  nothing 
of  conscience  in  his  claim,  and  tbe  law  is  against  him. 

This  opinion  I  have  formed  after  long  and  repeated  considera- 
tion; I  have  explained  the  ground  of  it  I  fear,  with  too  much  pro- 
lixity, and  perhaps,  have  repeated  too  often  the  same  thing,  but 
public  duty  required  a  deep  investigation,  and  full  explanation  of 
the  subject.  The  justice  of  the  case  is  so  clearly  with  the  de- 
fendants, that  it  would  be  incumbent  on  the  plaintiff,  who  wishes 
to  establish  a  rule  contrary  to  justice  and  equity,  to  produce  some 
well-established  authority,  showing,  that  there  is  an  inflexible  rule 
of  law,  in  opposition  to  justice;  he  has  failed  to  do  this,  for  the 
invariable  rules  of  law,  and  the  justice  and  equity  of  the  parti- 
cular case  are  in  exact  and  happy  conformity. 

Judgment  affirmed. 


liii  APPENDIX. 

Since  the  opinion  was  drawn  up,  I  find  in  1  Vol.  of  Rep.  of 
Nott  and  M'Cord,  of  Cases  in  the  Constitutional  Court  of  South 
Carolina,  329,  that  the  decree  of  the  court  of  ordinary,  revoking 
the  probate  of  a  will,  was  held  to  be  the  judicial  act  of  a  court  pos- 
sessing jurisdiction  over  the  subject  matter  of  dispute.  And  the 
law  holds  the  exercise  of  this  right  so  sacred,  that  no  evidence 
will  be  permitted  to  contradict  it  in  relation  to  the  subject  in  dis- 
pute, so  long  as  it  remains  unreversed  by  the  superior  tribunal  and 
this  can  only  be  done  by  appeal  to  Common  Pleas,  according  to  Act 
of  Assembly.  And  in  Waters  \.  Woodward,  same  page,  an  ex- 
isting judgment  or  decree  of  a  chancery  court,  upon  a  matter 
within  its  jurisdiction  is  conclusive  of  the  right  of  the  parties  in 
any  other  court  of  concurrent  jurisdiction;  nor  do  the  decrees  of  a 
court  of  equity  form  any  exception  to  the  general  rule.  Sitting  in 
a  court  of  law,  judges  are  not  at  liberty  to  enter  into  the  examina- 
tion of  the  justice  or  injustice  of  the  deCree  of  a  court  of  competent 
jurisdiction,  unless  it  comes  before  them  on  a  writ  of  error  or 
appeal,  it  must  stand  until  reversed  by  a  court  of  competent 
authority  to  review  it.  In  Scott  v.  Hancock,  13  Mass.  162.  under 
a  similar  proceeding,  Jackson  justice,  said,  "  these  orders  of  sale  by 
administrators  affect  the  inheritance,  and  if  we  should  order  the 
sale  as  prayed  for,  by  administrator,  we  should  decide  these  ques-. 
tions  conclusively  against  the  heirs,  who  would  be  disinherited  to 
the  extent  of  what  should  be  sold  under  the  order,  without  any  trial 
of  the  fact,  by  a  jury,  and  without  any  opportunity  of  reviewing 
the  judgment  by  writ  of  review,  writ  of  error,  or  in  any  other 
manner."  The  claim  of  the  creditors  is  paramount  to  any  title 
that  could  be  acquired  after  the  death  of  the  testator.  And  in 
Moers  v.  White,  6  Johns  Rep.  384.  Chan.  Kent,  entirely  approves 
of  this  doctrine,  of  the  conclusiveness  of  an  order  of  sale,  and 
refers  to  Head  v.  Williams,  7  Wheat  60,  before  cited,  and  ob- 
served, that  the  validity  of  the  order  of  sale  was  not  questioned, 
because  it  was  the. order  of  a  competent  court  of  peculiar  and  ex- 
clusive jurisdiction;  and  it  was  an  extraordinary  and  monstrous 
case.  Letters  of  administration  were  granted  after  the  lapse  of  28 
years,  and  the  right  to  sell  after  the  lapse  of  31  years,  from  the 
death  of  the  intestate,  yet  the  decree  of  the  court  being  res  judi- 
cata,  could  not  be  questioned  in  a  collateral  action.  Thus/we'See 
how  the  question  stands  by  the  law  of  England,  and  our  sister 
states,  New  York,  Connecticut,  Massachusetts,  and  South  Caro- 
lina. The  extent  of  real  property,  that  must  be  in  the  course  of 
20  years,  transmitted  by  this  mode  of  sale  is  immense,  and  the 
number  of  persons,  through  whom  that  property  passes  is  incon- 
ceivable. Can  it  be  then,  that  a  matter  decided  by  the  Orphan's 
Court,  a  court  of  peculiar  jurisdiction,  shall  be  controverted  at  the 
end  of  any  given  period,  and  that  a  latent  claim,  which  no  man  of 
intelligence  could  foresee — known  to  "no  one,  or  if  known,  con- 
cealed, should  be  put  in  operation  by  an  heir,  and  sweep  away 
the  labours  of  a  life-time,  and  that  because  the  tribunal  appointed 


APPENDIX.  liv 

by  the  law,  to  decide,  had  erroneously  found  a 'fact  on  prima  facie 
evidence,  as  the  cohabitation  here  was,  and  then  without  notice, 
or  the  means  of  notice,  the  decree  of  the  court  should  be  disputed 
after  such  long  possession? 

As  the  doctrine  of  the  law,  I  hope  I  have  satisfactorily  shown 
it  is  not. 


INDEX 


Abatement — of  legacies  -     207,  et  seq. 

Absence — administration,  during        -  95,  96 

Absconding  party  19,  20 

Acceptance  of  lands  of  intestate  by  distributees  345  et  seq. 

(see  partition). 

Accounts — of  executors,  administrators  and  guardians    10,  11,  26 
proceedings  to  compel 

settlement  of,       -  315,  316 

settled  with  register                          -  316,  317,  318 

proof  of,  318 

sent  to  Orphan's  Court,  for  confirmation  317 

notice  of  the  time  of  confirmation  of,  -     316,317 

confirmation  of,  Nisi  26,  318 

auditors  upon  319,  et  seq. 

decree  of  Orphan's  Court,  upon  320,  321,  323,  et  seq 

how  far  conclusive  323 

balance  on,  how  made  a  lien  325 

of  guardians        -  ibid. 

of  old  soldiers       -  14 
of  persons  authorized  to  sell  estates  by  special 

act  of  Assembly               -  ibid. 
Action — See  remedies 

Abeyance                  -                                   -  50 

Ademption — of  a  legacy        -  198,  et  seq. 

Administration — what,  origin  of,  94,  99 

by  whom  granted  -    65,  109,  114 

effect  of,  when  granted  abroad  -                   109 

in  a  sister  state  -     ibid. 

general  or  special  95,  109 

durante  minoritate  95,  291,  107 

of  executor  or  administrator  -          95, 96 

I 


Iviii  INDEX. 

Administration — when  it  ceases  -  96 

when  it  shall  not  be  granted  -       ibid, 

durante  absentia  of  executor  or  ad- 
ministrator    ,        -  -        ibid. 
where  executor  is  un- 
known or  concealed      ibid, 
pendente  lite  95,  97 
when  granted  97 
when  it  ceases         -      ibid, 
de  bonis  non                                         95,  97 
granted  on  death  or  dismissal  of  executor 

or  administrator  -  97 

Administrator — may  execute  powers  given  by  will         -        ibid, 
may  convey  estate  sold  by  first  adminis- 
trator ...        97 
may  convey  lands  and  tenements  con- 
tracted for  with  his  decedent      -  97 
cannot  maintain  assumpsit  against  admi- 
nistrators of  executor  of  his  decedent  98 
Administration — cum  testamento  annexo      -                 98,  99,  100 

authority  of  Register  to 

grant  -       99 

when  granted  98,  99 

to  whom  granted          -        98 
on  failure  of  execu- 
tor to  take  probate    99 
on  refusal  of  executor    99 
granted    before    or 

after  probate     -        98 
appointed  by  Orphan's  Court,  when  exe- 
cutor has  been  removed  or  has  resigned       99 
powers  in  such       -  97,  100 

general  to  whom  granted  -    79,  ibid. 

to  the  husband  101 

to  his  representatives         -  ibid. 

his  right  to,  how  controlled  or  varied  101 

to  the  widow  or  next  of  kin          -        -        -         103 


INDEX.  Ixix 

Administration,— order  in  which  kindred  are  entitled       103,  104 
half  blood  admissible  to        -  104 

when  granted  to  feme  covert,  and  how  -  ibid, 
how  granted  if  she  be  next  of  kin,  and  a 

minor      -  -  105 

who  are  incapable  of  taking  -        ibid. 

right  of,  depends  on  interest  in  the  estate  ibid. 
grantable  to  residuary  legatees,  when  105,  106 
on  renunciation  of  executor  106 

on  death  of  feme  covert  executrix  -  ibid. 
on  death  of  executor  intestate  -  ibid. 

grantable  to  creditor,  when  107 

grantable  at  pleasure  of  register,  when  ibid. 
how  granted  107,  110,  111 

bond  how,  and  to  whom  given       -  107,  108 

oath  of  administrator  on  taking  let- 
ters     -  108 
when  granted  cannot  be  committed  to 

another  grantee  -       109 

special,  as  of  a  specific  chattel  -  ibid. 

granted  in  one  county,  need  not  be  taken 

in  others  -  ibid. 

several,  cannot  be  granted  of  same  thing  ibid. 
analogy  of  administration  to  probate  -  110 
when  granted  to  two,  survives  1 10 

void       -  85,  111,  114 

voidable       -  111,112 

letters  of,  improperly  granted,  revocable 

by  register's  court  111 

not  void,  pending  appeal  from  register 
.  payment  bona  fide  to  party  having  admi- 
nistration, good      -  112 
so  if  executor  appear  113 
cannot  be  repealed  at  pleasure  of  regis- 
ter      -                                                     ibid. 
if  granted  to  creditor  may  b«  maintained 
against  executor  of  will  subsequently 
produced        -                          -                 ibid. 


Is  INDEX. 

Administration— if  repealed  for  want  of  form  must  be  re- 
granted  to  the  same  party  118 
where  granted  to  wrong  party,  what  a  repeal  ibid. 
granted  without,  or  with  insufficient,  sure- 
ties 114 
may  be  revoked  by  Orphan's  Court,  for 

what  cause      -  -  ibid. 

revoked  for  inadequacy  of  security  must  be 

granted  to  same  person      -  113,  114 

may  be  granted  anew,  when 
revocation  of,  what  113,  114 

bond  107,  293,  et  seq. 

suit  on  -  293,  et  seq. 

breach  of  condition  of  294,  et  seq. 

person  first  suing,  entitled  to  preference 

in  payment  -  295 

suitors  on,  to  the  same  term          -  ibid. 

penalty  of,  quere  assets 
what  may  be  recovered  on 
judgment  on          - 
surety  in,  may  compel  administrator  to 

give  other  security  ••         -  319 

»         granted  to  one  who  has  made  a  gift  of 

goods  of   decedent  will  validate  such 

gift  121 

Administrator — derives  his  authority  from  Register    65,  109,  114 

interest  of          -  -         110,  115,  et  seq. 

when  it  vests  109 

of  special  -  95,  et  seq* 

power  of,de  bonis  won,  95,  97, 155,245,  246,  247 

durante  minoritate  .   95,  96,  291,  292 

durante  absentia  95,  96 

pendente  lite      -  95,  97 

cum  testamento  annexo        95,  97,  272 

feme  covert  104 

office  of,  analogous  to  that  of  executor'         no 

may  sell  estate  of  decedent  for  payment  of  debts, 

&c.  -  219, 220,  224 


INDEX.  Ixi 

Administrator — may  sell  estate  of  decedent  when  refused 

by  heira  219,  223,  290 

on  final  settlement  of  accounts 

220,  242,  Addenda.— No.  3. 

proceedings  of,  to  obtain  order  of  sale        224,  et  seq. 
sale  by  234,  291 

purchase  by,  of  decedent's  lands  -        232 

may  perfect  con  tract  of  decendent  relative 

to  lands        -        -  246,  et  seq. 

actions  by  268,  et  seq. 

actions  against      -  27,  29,  et  seq. 

action  on  promises  to,  or  by  315 

when  compelled  to  give  additional  secu- 
rity 10,11,12,85,86,114 
must  file  an  inventory  within  one  month  308 
inventory  of,  may  be  partial  -  ibid. 
must  file  an  account  within  a  year  308,  317 
account  of,  first  filed  need  not  be  final  308 
proceedings  against,  to  compel  him  to 

account  -        -  12, 808 

not  compellable  to  account  by  Register  71 

may  make  distribution  with  or  without 

direction  of  Orphan's  Court         12,  218,  219 
may  require  refunding  bond         -  219 

account  of,  how  settled  with  register  318 

proceedings    against,    in   the   Orphan's 

Court      -        -        -  315, 319 

bond  of,  proceedings  on  -        293,  et  seq. 

may  resign  his  trust,  and  be  dismissed  84 

of  executor,  action  against,  by  creditor 

legatee,  distributee  98 

when  entitled  to  administration  to  dece- 
dent of  executor      -  106 
payment,  bonafide,  to  112 
fraudulent  gift  by                                   -       .121 
debtor,  is  not  released  from  payment  of 

debt        -  179 

selling  real  estate  by  order  of  Orphan's 
Court,  must  give  security  241 


Ixii  INDEX. 

Administrator — action  against,  before  justice  of  the  peace    128,  n. 
may  invest  funds,  when  and  how,     212,  213,  & 

(Addenda.— No.  II.) 
may  extinguish  ground  rents,  when  and 

how,  Addenda. — No.  4. 

when  liable  for  costs,        -      Addenda. — No.  5. 

Advancement — of  a  child  214,  215,  216 

by  lands  or  personal  estate  214 

in  case  of  partial  intestacy     -        -        215,216 

what  shall  be  an  216,217 

what  shall  not  be  an  217 

how  estimated  -  ibid. 

to  be  brought  in  among  children  only        -     217 

in  case  of  intestacy  only         -        -        217,218 

Affidavit,-^-of  executor  or  administrator  to  hold  to  bail  269 

to  the  truth  of  exceptions  320 

Alien — may  purchase  and  hold  lands          -  48,  49 

may  make  a  will  of  real  and  personal  estate    -        ib.  ib. 

may  be  executor  -  80 

may  be  administrator          -         -  105 

may  take  by  devise  or  descent  -        -        406, 407 

may  be  endowed        -        -        -  406, 407 

Appeal — from  Orphan's  Court  37,  321,  355,  365 

on  definitive  sentence  only  37,  38 

how  made         -  38 

recognizance  on  -  37 

before  whom  taken  -        38 

on,  Supreme  Court  will  rectify  error  ib. 

from  Register  -  113 

from  Register's  Court  74,  113 

does  not  prejudice  executor  if  he  give  security        -    75 

what  facts  may  be  examined  into,  on  ib. 

proceedings  below,  how  staid  on  37 

Appearance  -  18,  19,  £6 

by  minor  18,  19 

time  for       -  22 

of  executor        -  286 

Appraisement — of  decedent's  effects       -  156,157 


INDEX.  Ixiii 

Appraisement — of  lands       -                         -  345 

commission  for  158 
Apprentices— their  binding  may  be  directed  by  Orphan's 

Court       -  12,  13 

next  friend  of,  need  not  be  appointed  by 

Court  13 

interest  of  executor  in        -  119,120 

Apprentice  fee,  no  advancement             -  217 

Arbitration — submission  to,  by  executor          -  285 

Arrest — on  attachment            -  19 

by  executor  before  probate  48 

executor  in  general  not  liable  to  285 

in  what  cases  liable  to      -  285,  286 

Assent — of  executor  -        -        -         189,  et  seq. 

Assets— embrace  every  spectes  of  property  115,  et  seq. 

rents  of  real  estate  received  by  executor,  not  131,  132 

admission  of,  by  executor                            -.  284,  285 

express  or  implied       -  286 

judgment  of,  quando  acciderunt  289,  290 

presumption  with  regard  to,  when  no  inventory  is 

filed  157 
unless  aliened  collusively  by  executor,  cannot  be 

followed  by  creditor                                     -  160 
Assignment — executors  interest  by                   -  125,127 
Attachment  18,  19,  21 
return  to                                            -  19,  20 
Attachment  with  proclamation — what     -  20,  21 
return  to                                        -  26 
appearance  to                                           -  -        £2 
notice  of,                            -    .    -        -..  ib. 
proof  of  service                     -  -        ib. 
serves  as  ca  sa  27 
Attorney,  power  of,  for  acceptance  or  refusal  of  estate  -    372 
Attainder,  for  treason  or  felony,  effect  of,  48,  105 
Auditors — appointed  by  Orphan's  Court  319 
to  audit  accounts  of  executors  and  administra- 
tors      -                          -  ibid. 
power  of                                                 -  ibid. 


Ixiv  INDEX. 

Auditors — witnesses  before  -        320 

report  of,       -  -  26,  520 

decree  of  court,  on  report  of,  ibid.  ibid. 

compensation  to  319 

for  the  adjustment  of  assets       -  175 

Award — submission  to,  by  executor        -  285 

Bail — when  defendant  is  in  custody  on  attachment  19 

executor  may  hold  to,  -        -  269 

executor  in  general  not  held  to,  285 

in  what  cases  he  may  be    -        -        -        285 

Birth  of  issue  revocation  of  a  will  63 

Bond — administration  293,  et  seq.  309. 

suit  on  -        293,  et  seq. 

breach  of  condition  of,  294 

persons  first  suing  on,    -  -  295 

suit  on  by  several  to  same  term  ibid. 

suit,  on  application  for  the  benefit  of         ibid. 

joint,  joint  and  several  174 

administration,  penalty  of,  whether  assets  -        295 

what  may  be  Recovered  in  suit  on          296 

judgment  on  295,  309 

surety  in,  remedy  for  -        310 

for  purpart  of  intestate's  estate,  personal  property        377 

Brothers — their  right  to  administration  •  104 

proportion  of  in  distribution      -  337,  et  seq. 

Caveat  69,  70,  76,  109 

Certiorari — on  appeal      -  37 

Chancery — powers  of  Orphan's  Court    -         19,  et  seq.  27,  28,  30 

Chattels — real  and  personal  115,  et  seq.  131 

interest  of  executor  or  administrator  in  115 

may  be  held  in  jointure,  or^in  severalty     -        121,  122 

jointure  in,  may  be  severed     -  ibid.  ibid. 

tenancy  in  common  in  122 

annexed  to  freehold  133,  134 

personal,  how  limited  -  50, 51 

estate  tail  in  -  -     .  _57 

personal       -  -  118,  et  seq> 

conversion  of  real  to  personal,  and  vice  versa  122 


INDEX.  Ixv 

Child— posthumous  62,  181,  340 

Children — entitled  to  distribution  337,  et  seq. 

children  of,  and  their  representatives  ibid.  ibid. 

Chose  in  action  123,  144,  et  seq. 

Citation — '-of  executor  to  prove  the  will  -          82,  (see  summons.) 

of  widow,  or  next  of  kin,  to  contest  a  nuncupative 

will  -  44 

of  next  of  .kin  to  accept  or  refuse  administra- 
tion, or  shew  cause  why  it  should  not  be 
granted  to  a  creditor  -  107 

to  produce  an  inventory  -        -         158 

suit  by  16,  21 

first,  when  issued  16 

,        second,  when  issued  -  -        -        18, 21 

against  guardians — executors   and  administra- 
tors— trustees — widow  executrix  -         16,  308 
when  and  how  served                   -        -  16,  22 
return  to                                                                  21,  22 
contempt  of       -                                    -  17, 20 
Codicil—definition  of  44 
how  annexed                                              -  ib. 
how  executed                                                -                 ib. 
operation  of                                                         -           ib. 
revocation  of  will  by                                                -      60 
Go-executors,— and  have  joint  and  entire  interest                     155 
action  by                                                    270,  275 
power  of,  in  selling  land    -                  220,  et  seq. 
infant                                                          270, 291 
Coffin — shroud  and  dead  clothes,  in  whom  property  of,    -         121 
Commission — of  rebellion        -                                                      21 
to  make  appraisement  or  valuation             -         158 
to  receive  nomination  of  minor 

Commissioners — of  sequestration  20,  22,  23 

Condition — interest  vested  in  executor,  by  125 

Contempt  of  court       -  14,  17,  18,  19,  20,  21,  24,  25,  86 

Consanguinity — lineal  and  collateral     -  -  103,  104 

Construction  of  wills  -  -  -  50,51 

Contingent  interests  59,  81,  138,  186,  128 

9 


Ixvi  INDEX. 

Copy— of  a  will  proved  abroad  .  .  .66,  67 

of  administration  bond  by  register  .  .        319 

of  notice  to  creditors  .  .  .  317 

of  proceedings  in  distribution         .  .  348, 365 

Corporation — aggregate  or  sole  may  be  executor          .  '     _        79 

Costs  .  286,  Addenda— No.  5. 

Creditor — administration  granted  to     .  .  .  107 

may  apply  for  sale  of  real  estate  of  decedent  244 

may  compel  executor,  or  administrator,  to  give 

security  ...  12,  85,  86,  114 

notice  to,  of  presentation  of  accounts  of  execu- 
tors and  administrators,  for  confirmation  178 
by  specialty,  may  have  action  against  heir                133 
neglecting  to  exhibit  his  accounts  to  executors,  8jf.  175 
Cumulative  legacies          .....        202 

Curtesy — tenant  by  the  ....  364 

Custom — in  regard  to  way  going  crop        .  .  135,  136 

Damages — when  assets        .          .  .  123,  124,  125,  265 

Debts — received  by  executor  assets          .  .  \  23 

remedies  against  executors  for  .         .       279  &  seq. 

real  and  personal  estate  liable  for  .  .         279 

lien  on  real  estate  of  decedent  .  .  280 

effect  of  sale  by  order  of  orphan's  court,  upon  such 

lien  .     ...  .  .  .  234 

in  what  order  payable  by  executor  .  161,  162 

due  the  United  States  .  .  .       161,  173 

for  physic,  funeral  expenses,  and  servant's  wages        162 
rents  ....  162,  163 

judgments         .          .          .  ib.    164  &  seq. 

recognizances         ...  ib.    168  &  seq. 

bonds  and  specialties  .  .    ib.    173&sey- 

simple  contract      .  .  ib.    175 

due  the  Commonwealth  .  .    ib. 

how  paid,  twelve  months  from  decedent's  death    .      176 
suit  for,  may  be  commenced,  before  twelve  months 

from  death  of  decedent         .          .          .         176,177 
interest  on  ...  .  .  .        177 

audit  to  determine  pro  rata  amount  of         .  175 


INEDX.  Ixvii 

Debts — must  be  exhibited  to  executor  within  twelve  months 

after  notice       .  .  .  .  .175 

to  administrator  or  executor,  may  be  retained  by  him 

153,  179 

due  from  executor          .          .  .         179,  186,  181 

executor  paying,  out  of  his  own  purse         .        -         153 
executor  compounding,  shall  have  no  benefit          •      126 
appearing,  after  payment  of  legacies         .          209,  210 
devise  of  lands  for  payment  of     .          .          .  220 

legacy  in  satisfaction  of,        ...  •      204 

due  to  the  testator,  sperate  and  desperate  157 

payment  of,  to  executor,  what  shall  be         .  •      264 

under  a  forged  will     .        .  77, 78 

\    to  administrator  under  a  void  adminis- 
tration .  .  .  112 
when  executor  delays  receipt  of    .            .            .       264 
due  from  administrator             .            .            .            179 
from  intestate's  estate,  note  of,  when  to  be  filed  in 
prothonotary's  office.      ....       280 

Debtor — when  released,  being  appointed  executor  179,  180 

Decree  of  orphan's  court          .  .  .  .         24, 25 

how  far  conclusive  250  &  seq.  Appendix 

No.  2 

how  enforced  .  .        24, 25 

Declaration  on  issue  from  register's  court  .  71,  72 

rule  for  ....  72 

in  suit  where  executor  or  administrator  is  substi- 
tuted .  .  .  .271 

by  executors  or  administrators       .  .  272 

Deed — of  woman  divorced  and  living  with  her  adulterer     47,  48 
Default        .  .  .  .  .  .  .14 

Descents — English  law  of,  never  fully  in  force  here      .  335 

early  laws  of    .  ,  .  .  336 

present  law  of        .  .  .  .      335,536 

common  law  relating  to,  when  in  force  .       340 

Devastavit  ....    263,  267,  176 

by  commission,      ....        264 

omission       ....  ib.  265 

what  shall  not  amount  to  265 


Ixviii  INDEX. 

Devastavit — by  one  of  several  executors  .  .      266 

by  husband,  where  executrix  marries  after  testa- 
tor's death  .  .        .      266 
where  she  marries  before  commence- 
ment of  executorship      .  .       266 
executor  of  executor,  answerable  for         .        .      ibid 
\                executor  de  son  tort  liable  for               .  .        92 
executor  may  be  held  to  bail,  in  case  of  .      285 
return  of,  by  sheriff            .            .            .      286,  287 
Devise — of  lands,  how  made          ...  39,  49 
of  the  several  kinds  of  estate  by                   .        .        53 
of  lands  to  be  sold           ....      220 
executed  or  executory          .            .  581 
Devisee — right  of*  to  chattels  annexed  to  freehold             .       153 
lands  devised  to,  bound  by  debts  of  decedent  281 
when  entitled  to  contribution         .            .        .281 
Distress — right  of  widow,  to  make             .            .            346,351 
of  executor  or  administrator             .        277,  278 
Distributee — remedy  for,  against  executors  or  administrators  326 
proceedings  for,  to  obtain  distribution           .       344 
bonds  required  of,  when         .            .     '        .176 
Distribution        .....                211,335 
of  personal  estate            .             .            211,343,377 
administrator  may  make,  how       .       218,219 
decree  of  orphan's  court  for     .          .          ibid 
refunding  bond  required  in           .       127,  ibid,  377 
remedy  to  obtain       ....       326 
of  real  estate             .            .            .             335  &  seq. 
persons  entitled  to     .            .            .       335  &  seq. 
in  cases  only  embraced  by  intestate  laws   336,  341 
powers  of  orphan's  court  to  make            .            344 
proceedings  to  obtain           .            .            .      ibid 
petition  for  inquest       344,  354,  355,  357,  358,  360 
writ  or  order  of  inquest                      359,  360  &  seq. 
return  to  writ  for     .            .             363,  366  to  376 
where  lands  cannot  be  divided  among  children 
or  widow  and  children         .            .        344,  345 


INDEX.  Ixix 

Distribution — where  intestate  leaves  a  widow,  father,  and 

collateral  heirs    ....        355 
where  the  real  estate  will  accommodate  more 

than  one  child  or  representative      .        346,  347 
where  land  lies  partly  in  two  counties        347,  348 
where  intestate  leaves  no  children  or  their  re- 
presentatives       .  .  .  348,  349 
error  in  proceedings  for             .            .  363 
exception  to            .            .            .            .         365 
confirmation  of             .            .           363, 365, 374 
rights  of  election  in             .             .         .     369,  372 
rule  upon  the  heirs  to  accept                352,  353,  375 
^                      acceptance  by  heir               .             .            372, 373 
acceptance  by  heir  of  lands  in  one  county  353 
rights  of  infants  entitled  to  •           .            364,  390 
resurvey  in  distribution              .              .            377 
appeal  from  decree  in  orphan's  court  in             365 
exemplification  of  proceedings  in         .               ibid 
real  estate  in,  converted  into  personal  377,  371, 377 
but  not  until  sold            .             .380 
lien  of  creditors  upon           .         .      371 
husband  acting  on  right  of  wife,  in           383  &  seq. 
claims  of  parties  in,  against  each  other,  when 

they  should  be  adjusted         .          .        388,  389 
widow's  share  in    .  .  .  .      346 

transfer  of  shares  in,  effect  of      .*       .        .       371 
sale  of  real  estate  where  distributees  refuse  at 

the  valuation  .  .  .          .       390 

Distringas  against  corporations  .  .  .26 

Divorce — bars  dower  ....        400,  405 

does  not  effect  wife's  right  to  recognizance  for  her 

lands              .            .            .             .  141 

Domicil — of  testator.               .            .            .  43 

Donatio  mortis  causa — definition  of         .            .  .150 

what  shall  constitute    ,          .  .      ibid 

what  shall  not        .           .  151,  152 

quere  whether  mortgage  may  be  151 

not  proved  with  the  will         .  .      152 


Ixx  INDEX. 

Donatio  mortis  causa — executors  assent  to,  not  necessary       15S 
not  good  against  creditors  .       ibid 

Dower — widow's  right  of  .  .  .  .        392 

assignment  of,  how  obtained  ,  .        392, 393 

may  be  assigned  temporarily      .  .  393,  394 

though  debts  be  not  paid          .        ibid 

widow  cannot  enter  on,  till  assignment      .        .        396 

of  an  estate  improved  by  purchaser       .  .        ibid 

by  heir        .  .        ,        ibid 

seizin  in  law,  or  fact  by  husband  necessary       .         397 

not  of  a  remainder          ....         399 

may  be *of  trust  estate  .  .  .  397 

of  estate  held  by  warrant  .  .        ibid 

of  an  improvement  right       .  .      ibid,  398 

of  a  rent  charge  .  .  .        ibid 

of  exchanged  lands      .  .  .  ibid 

of  lands   conveyed  by  husband  reserving 

rent  ....  ibid 

cannot  be,  of  dower,  unless  descent  be.  bro- 
ken         ..  .  .          398, 399 
of  jointenancy          .  .          ibid 
tenant  cannot  commit  waste,  may  clear  wood- 
land    .....        400 
widow  must  elect,  between  dower  and  de- 
vise           .            .            .            .14, 404 
how  barred          .                                     .  400 
by  recovery  of  estate  against  the  hus- 
band      ....            ibid 
jointure            ....      ibid 
by  acceptance  of  devise      .            .  403 
by  elopement  and  adultery         .        .       405 
by  divorce        ....      405 
by  alienage              •             .            .  406 
by  conveyance              .            .            .      407 
by  the  debts  of  husband      .            .  41 3 
Election — of  widow  between  dower  and  devise       .        -14,  404 
of  shares  in  distribution          .        352,  353,  367  &  seq. 
Emblements—        i'fi          .            .            134,  135,  137,  138,  142 


INDEX.  Ixxi 

Error — in  proceedings  for  distribution  .  .  363 

writ  of,  by  executor  ....      269 

Escape — action  for  by  executor  ,  .     .  ibid 

Estate  for  life— sequestered,  how  discharged         .  .        25 

Evidence — of  the  service  of  citation       .  .  .  17 

to  prove  a  will     ....  40,  41 

of  nuncupative  will      ....          43 

parole  admitted  of  intention  as  to  revocation  of 

will         .  .  '   .  .  60 

before  register's  court  ...  70 

oh  an  issue  devisavit  vel  non        .  .  72,  73 

of  ademption  of  legacy  .  .  .          199 

Execution — of  judgments  of  orphan's  court  .  .       27 

signed  after  death  of  defendant        289 

tested  first  day  of  term      .  .  .  ibid 

after  defendant's  death  .  .      ibid 

on  judgment  against  executor        .  .  286 

Executor — definition  of  .  .  .  ^      79 

derives  his  authority  from  will        .  .         79, 92 

who  may  be     .  .  .  .  .    79, 80 

appointment  of  .     80,  79, 81 

express  or  implied  .  80,  81 

exclusive  or  in  common  with  others  80,  81 

absolutely  or  qualified  .         ib.  ib 

sole  or  jointly        .  .  .81 

when  of  age  to  act  .  .  .  275 

acts  of  before  termination  of  his  office,  good  81 

acceptance  and  refusal  by  82 

cannot  assign  his  office  .  .  .      ibid 

power  of,  before  probate       .  .  .    93,  271 

may  be  cited  to  prove  will        .  .  .     ibid 

neglecting  to  prove  will,  administration  granted      82 

may  renounce  in  person  or  by  proxy          .        .    ibid 

must  refuse  entirely       .  .  .  ibid 

effect  of  renunciation  by    .  .  .  ibid 

several,  renunciation  of  part  not  conclusive       83,  99 

must  all  renounce  .  ib.  ib. 

acceptance  by  ....     82,  93 


Ixxii  INDEX. 

i 

Executor — may  be  dismissed,  after  examination  of  the  trust  83, 84 
letters  of,  may  be  revoked  .  .  84,  85 

when  executrix  having  minors  is  mar- 
ried       .  .  .  11,  84 
when,  like  to  prove  insolvent  ib.  85 
he  wastes  or  mismanages  the  es- 
tate             .            .              ib.  ib. 
notice  to,  to  give  security     .          .          86 
security  may  be  required  of        .            .      184&«egf. 
death  of,  intestate            ,            .            .94,  97,  98 
minority  of                   .             .             .             .95 
of  deceased  co-executor              .            .            .     106 
surviving  co-executor  dying  intestate           .          ibid 
not  ascertained  or  concealed        .  96 
interest  of,  in  chattels  real      .            .            .115 
what  so  denominated             .            .    ibid 
when  they  relate  to  incorporeal  here- 
ditaments       .            .            .          117 
possesssion  of,  of  corporeal  and  incorporeal  here- 
ditaments                 .            .            .            .117 
interest  of  in  chattels  personal    .          .      118  &  seq. 
in  apprentice  and  servant        .      119, 120 
when  the  interest  in  the  property  is  vested  in  1£0, 121 
interest  of  in  patent        .        .            •            .120 
interest  in  deeds  and  writings         .            .             121 
fraudulent  gift  by                                   .            .      ibid 
interest  of,  in  chattels  personal  changed  to  real      122 
interest  of,  in  choses  in  action  where  the  cause 
.     of  action  accrued  before  testator's  death      .        123 
where  the  cause  of  action  accrued  af- 
ter testator's  death         .                     125 

_ 

by  condition      .  .            .            ibid 

in  things  in  pledge  .            .         126 

by  remainder  and  increase        .  ibid 

in  a  trade      .  .            .         127,  265 

by  assignment      .  .            .          127 

by  limitation  .            .               128 

by  election            .  .            .          130 


INDEX.  Ixxiii 

Executor— when  entitled  to  legacy  to  testator  .     129 

when  not     ...  .     129,  130 

cannot  take  rent  of  real  estate  .  ISO,  131 

entitled  to  emblements  .         .         135,  137,  138 

to  way  going  crop  .  ibid  136,  137 

of  tenant  for  life,  entitled  to  an  apportioned  part 

of  rent,  when  .  13 

how  effects  he  takes,  may  become  his  own  .  153 
interest  of  married  woman  executrix  .  .  154 
of  joint  executors  .  .  .  155,109 

of  surviving  executors         .  .  .  155 

of  executor        .  .  .  155,  275, 276 

when  entitled  to  administration      .       106 
duty  of  .....       155 

must  bury  deceased,  .  .          93,  135,  156 

according  to  his  circumstan- 
i  ces  ...  156 

must  make  an  inventory  .  .        156  &  seq. 

may  show  assets  to  be  less  than  inventoried  .  159 
must  collect  the  effects  .  .  .  159 

powers  of,  for  that  pur- 
pose        .  159  &  seq. 

may  transfer  stock  at  bank       .  .  .       160 

may  sell  effects         ....  ib. 

mortgage  terms  for  years  .  .  ib. 

assign  mortgage  in  fee  .  .  ib. 

effects  aliened  by  cannot  be  followed  by  creditor    160 

may  recover  the  property  by  action,          .       160,  161 

sell  effects  by  auction  free  of  duty  .       161 

must  pay  debts        .  .  .  .  161 

order  of  payment  .  .  .161 

to  the  United  States  161,  173 

physic,  funeral  expenses, 

and  servants'  wages        162 
rents          .  .  163 

judgments        .  .164 

recognizance          .  1 68 

bonds  and  specialties  .       173 
10 


ixxiv  INDEX. 

simple  contract  debts        174 

Executor— paying  debts  of  inferior  order  before  those  of  su- 
perior .  .  .  .  -  162 
may  retain  his  own  debt  .  .  -  179 
notice  by  to  creditors  .  .  .  175, 176 
compounding  debts  due  from  testator  .  .  126 
debtor  appointed,  extinguishes  debt  179,  180,  334 

exceptions       180 

legacy  to  .....      179 

must  pay  legacies     .  .  .  181  &  stq. 

legatee    .....          180,  191 
distribute  personal  estate     .  .  .  211 

pay  residuum     .  .  .  .  ,211 

if  no  residuary  legatee,  to  next  of  kin  212 
must  put  minor's  money  to  interest,  under  direc- 
tion of  Orphans'  Court  212,  213  &  (see  adden- 
da.—No.  II. 

must  pay  interest  if  he  do  not          .  .  213 

when  liable  for  loss        ....      214 
incurring  interest  and  costs,  by  non  payment  of  a 

just  debt  .  .  .  .  214 

power  of,  over  real  estate  .  .  .      219 

may  sell  lands  devised  to  be  sold     .  .  219 

on  a  final  settlement  of  adminis- 
tration account          .  .      220 
purchase  by              ....  233 
»ay  execute  contracts  of  decedent  relative  to  real 

estate  .  .  .      246, 247, 248, 249 

devastavit  by 

by  commission    .  .  .  264 

by  omission  .  .  264, 265 

•what  shall  not  amount  to  .  265 

by  one  of  several  executors  .  .      266 

by  husband  of  executrix  .  ib. 

by  executor  of          ...      267 

not  liable  for  devastavit  of  co-executor        .  266 

in  case  of  devastavit  may  be  held  to  bail          .      285 


INDEX.  Ixxv 

Executor— proceedings  against,  on  devastavit  returned  by 

sheriff      .....        286-7 
not  compellable  to  make  distribution  until  after 

one  year         .....       176 
may  be  sued  within  twelve  months  .  .  176 

may  require  btfnd  from  distributees       .  .       176 

not  bound  to  plead  statute  of  limitations     .  266 

infant,       .  .  .  .  .  80,  96 

durante  minoritate        .  .  .  .81 

acts  of  co- executors  .  .  .  155 

de  son  tort,  .....         87 

what  acts  make  one       .  .      87, 91 

what  not  .  .  87,  88 

cannot  be  where  rightful  executor    88,  89 
can  maintain  no  action  in  right  of  de- 
cedent      ...  89,  90 
whether,  is  a  conclusion  of  law  89 
his  wrong  qualified  by  administration  ibid 
may  be  compelled  to  pay  debts,  as  far  as  he  has 

assets       .  ibid 

what  acts  of,  binding     .  .  .  .     ibid 

may  plead  plene  administravit  to  an  action  by 

creditor     .....  ibid 

has  no  defence  against  rightful  representative  of 

decedent        .....      ibid 
payments  by,  may  be  deducted  from  damages        ibid 
can  derive  no  advantage  from  his  assumed  cha- 
racter .....         90 
cannot  retain  in  satisfaction  of  his  debt       .         ibid. 
cannot  protect  himself  against  action  brought  91 
in  action  by  creditor  may  be  joined  lawful  execu- 
tor or  administrator     ....      ibid. 
action  against             ....        ibid. 
liable  for  waste               .            .          .       91, 92 
for  false  pleas            .           .                  ib* 
for  assets  which  have  come  to  his 
hands.             .            .            .         ibid. 


Ixxvi  INDEX. 

Executor — executors  of,  liable  for  waste  'or  conversion  by 

their  decedent  ...  92 

of,  not  liable  for  devastavit  by  first  executor  ibid. 

actions  by          .  .          268  &  seg.  128,  124,  125 

on  personal  contracts  .  .  268 

on  promise  to         .  .         272,  315 

breach  of  contracts  relating  to  realty   268, 

'    124,125 

against  sheriff  ...          269 

ejectment  on  mortgage  .       ibid 

for  injury  to  person  of  testator  .  .  ibid* 
may  hold  to  bail  without  positive  affidavit  269 
if  several,  should  all  join  .  .  270 

advantage  of  non-joinder  of,  must  be  taken 

by  plea  in  abatement         .  •         ibid 

how  substituted  for  testator          .  ibid 

should  make  profert  of  letters  testamen- 
tary .  .  .  271,272 
omission  how  aided            .            .      ib. 
of  surety,  paying  debt,  may  recover  against  prin- 
cipal       .                           .  272 
acknowledgement  to  executor,  should  be  declared 

upon  specially  .  .  .  ibid 

must  proceed  by  scire  facias  on  death  of  testator 

after  final  judgment  .  .  •        273 

may  direct  sheriff  to  levy — may  receive  money  if 

fifa  issued [before  death  of  testator        .        .    ibid 
may  have  scifa  after  interlocutory  judgment 
refusal  of  co-executors  to  join  in  action          .        275 
summons  and  severance          .  .  .        ibid 

death  of  executor  severed  .  .  ibid 

severed,  cannot  sue  out  execution       .          .         ibid 
coming  of  age,  may  have  sci  fa  on  judgment  by 

administrator  durante  minoritate        .         .      276 

for  rent  due  at  death  of  testator        .  .  277 

husband  of  executrix  must  join  the  wife  .      278 

debts  and  damages  recovered  by,  assets          124,  125 

action  against,  when  it  lies        .        .        279,  282,   &  seq. 

when  to  be  brought     .  .  ..         176 


INDEX.  Ixxvii 

Executor— on  promise  by  ...  272,  315 

to  what  extent  liable        .     .  .  283 

in  case  of  devastavit  .  .  ibid 

false  pleading  .        *   .        284 

on  a  promise  to  pay  .  .      284,  315 

what  an  admission  of  assets  by  .        285 

not  generally  held  to  bail  .  .  ibid 

when  held  to  bail  .  .  .          ibid 

proceedings  against  ....  ibid 
judgment  against — proceedings  upon  .  286  &  seq. 
when  chargeable  de  bonis  propriis  .  286  &  seq. 

sci.  fa.  against,  when  testator  dies  after  final  judg- 
ment .....          289 
when  several,  how  action  should  be  brought  290 
confession  of  judgment  by  shall  not  bind  co-ex- 
ecutors         .....      ibid 
admission  of  assets  by                     .             .  334 
distinct  pleas  by  several            .            .            .      291 
executor  of.  plea  of  plene  administravit  by    .        291 
of  deceased  partner,  cannot  be  sued  jointly  with 

surviving  partner  .  1  .  292 

having  assets,  bound  to  maintain  apprentice          ibid 
may  be  compelled  to  account  by  orphan's  court        10 

but  not  by  register    71 

to  give  security         .      11,  12,  309 

foreign  attachment  will  not  lie  against         .          292 

proceedings  against  sureties  of      .          .311 

accounts  of,  submitted  to  orphan's  court      315  &  seq. 

preceedings  thrreon        .  316  &  seq. 

balance  due  by,  made  a  lien  on  real  estate,  how     325 

suit  against,  before  justice  of  peace     .  .        328 

trustee  for  next  of  kin      .  .  .          .212 

compounding  debts  of  decedent  .  .        127 

action  against  for  rent,  accrued  before  and  after 

death  of  testator      .  .  .  .163,164 

renouncing,  may  execute  a  power  in  a  will  to  sell 

lands  .....        225 

aeV'ng  estate  of  decedent  by  order  of  orphan's 
court,  must  give  security        .  .          .       241 


xxxviii  INDEX. 

Executor— infant,  how  he  must  sue          .          .  .          291 

feme  covert  executrix        .  .  290 

entitled  to,  compensation  for  services  .         21 1 

.may  extinguish  ground  rents,  when  and  how 

Addenda. — No.  4. 

when  liable  for  costs        .  .    Addenda. — No.  5. 

Estates — created  by  will  ....  53 

in  fee  simple          ...  54 

fee  tail  .  .  .  54, 55 

for  life        .  .  .  .  53,54 

for  years  .  .  .  .       54,  58 

real  and  personal,  liable  for  debts      .  .  279 

Estate  tail   sold  under  a  judgment   for  legacy  charged 
thereon  ......  329 

how  created  by  will        .  .  .  65,  56 

how  barred  ....  56 

Exemplification — of  probate  .  .  .  .66 

of  proceedings  in  partition  .  348 

Fee — limited  after  a  fee  .  .  .  .  50 

Father — share  in  distribution 

of  personal  est.  .  .  343 

of  real  estate      .  .  .     337,  339 

estate  coming  from  .  .        338 

Felon  .  .  .  .  49,  105 

Felo  de  se  .....  48 

Feme  covert — will  of,  .  <  46, 47,  154,  155 

executrix        .  .  .  .        80, 154 

cannot  act  without  husband's  per- 
mission .  .  .80 
where  she  is  an  infant                .  ib. 
having  minors  of  her  own          .            .  84 
cannot  administer  without  husband's  permis- 
sion       .....              104 

except  when  he  is  abroad  or  otherwise  in- 
competent       ....       ibid. 

must  take  administration  alone      .  .  ibid. 

her  interest  devolves  on  her  husband          .         154 
cannot  administer  without  his  consent  ibid- 


INDEX.  Ixxix 

Feme  covert — action  against,  executrix  .  ,  290 

share  of  intestate's  estate  allotted  to  husband     383 
legatee  .  .  .  .  .193 

powers  of  attorney  by,  to  elect,  or  refuse 

estate  of  intestate  .  .  373 

acknowledegment  of  deed  by      .  .    407,  et  seq. 

takes  whole   estate   of   deceased  husband, 
when  ....  422 

may  be  deprived  of  personal  estate  of  husband 
by  will  ....  ibid. 

Fraud      .......  74 

Foreign  attachment  will  not  lie  against  executors     .  .     292 

Funds — investments  in,  by  executors,  administrators,  and 

guardians         ....  Addenda. — No.  2. 

Funeral  expences      .  .  .  .12,  162,  155,  56 

Grand  children.  .....          307 

Great  grand  children  ....  337 

Guardian — compellable  by  Orphan's  Court  to  account        10,  450 
chosen  by  minors  or  appointed  by  Orphan's 

Court         .  .  .  .  .  12 

for  old  soldiers  appointed  by  Orphan's  Court  14 

administration  granted  to,  for  infants  96 

what         .....  424 

how  many  kinds        .  .  .  425 

by  nature  ....    ibid. 

for  nurture     .  .  .         •  .         ibid* 

in  socage  ...  ib.  426 

testamentary  •  .  ib.  431 

statutory  .  .  ib.  430, 433 

ad  litem        .....  435 

who  may  be  .  .  .  436 

how  appointed  .  .  .          437 

petition  for  .  .  ibid, 

dedimus  potestatem  to  receive  nomination  of 

minor         .....  438 

powers,  duties,  and  liabilities  of  guardian  439 

of  the  person  ibid. 


Ixxx  INDEX. 

Guardian— must  assent  to  apprenticeship  of  minor  .  439 
cannot  bind  his  ward  as  a  servant  .  440 
of  the  estate  ...  .  440,443 

all  his  acts  must  be  for  benefit  of 

ward    ....  440 

must  put  money  of  ward  to  interest     440,  441 

Addenda.— No.  2. 

when  responsible  for  loss  .  .  441 
may  pay  oft'  incumbrances  on  real  estate  .  443 
cannot  employ  ward's  personal  estate  in  the 

purchase  of  lands        .  .  .  444 

may  receive  rents  and  profits  of  real  estate  ibid. 

must  keep  such  estate  in  repair         .         ibid. 
may  make  leases        .  .  •    .        ibid. 

taking  bond  for  rent  .  .  .  ibid. 

will  be  allowed  reasonable  expences  in  discharge 

of  trust  ibid. 

may  sell  real  estate  of  ward,  when  and  how    444,  445 

petition  of,  for  order  of  sale        .  -      445 

auditors  on  .  .          ibid. 

bond  by  .  .  446 

liable  for  waste         ....          ibid. 

compensation  of  •     ibid' 

may  accept  for  his  ward  a  purpart  in 

distribution  .  .  .  449 

•  remedies  of  ward  against  .  .     447 

compellable  to  give  security  .  447,  et  seq. 

surety  of,  remedy  for        .  .  448 

may  be  dismissed,  when  .  .  ibid. 

may  be  removed  by  Orphan's  Court,  on  cause 

shown,  .  .  85,  86, 449 

accounts  of,  how  settled  442,  448,  450,  452,  453 

how  confirmed     .  .  ibid. 

appeal    from    judgment    of   Orphan's    Court 

thereon    .....  450 

not  compellable   by   Orphan's  Court  to  pay 

balance  on  accounts,  to  ward  .  .     ibid. 

action  by  ward  will  not  lie  against,  during  guar- 
dianship       .....       451 


INDEX.  Ixxxi 

Guardian— com pellable,  when  removed  to,  pay  over  ward's 

estate  to  his  successor     .  .  .  451 

his  office,  how  determined        .  .  ibid. 

by  marriage        .  .  .  ibid. 

by  limitation  in  will  .  451,  452 

by  arrival  of"  ward  at  the  age  of  four- 
teen years  .  .  .      452 
by  majority        .             .            .  ibid. 
by  resignation             .             .  ibid. 
agreements    between  guardian  and 

ward  .  .  .  453 

Half-blood, — admitted  as  the  whole  to  administration        -      104 
interest  of,  in  distribution        -  339 

Heir  looms — leaning  of  modern  times,  against  -        134 

Heir, 

lands  descended  to  liable  for  debts  280,  281 

if  aggrieved  by  execution,  his  remedy      -  281 

if  he  lose  his  lands,  when  entitled  to  contribution  281,  282 
at  common  law,  when  entitled  to  estate  ,*  -  340,  et  seq. 
interest  of,  in  chattels  real  311 

rents  receive'd  by  -     131,  et  seq. 

Hotch-pot — child  advanced,  must  bring  advancement  into 

215,  et  seq.  (see  advancement) 

Husband  and  wife — relation  of  139 

of  executrix  80,  106,  154 

interest  of  in  the  chattels  real  of  the  wife       139,  et  seq. 

power  of,  over  the  estate  of  wife      -  139,  et  seq. 

must  administer  to  wife  to  obtain  chattels  not 

vested  r  101,  142 

of  tenant  in  dower,  entitled  to  rent  -          142 

arrears    of,    after 

death  of  wife         ibid. 

entitled  to  emblements         -  -        ibid- 

choses  in  action  of  wife,  when  vested  in  142 

how  extinguished 

by  him  14 

11 


Ixxxii  INDEX. 

Husband  and  wife — when  he  must  sue  jointly  with  wife  143 

when  representative  of,  entitled  to  choses  in  action 

of  wife  144,  145 

as  representative  of  wife,  may  recover  her  choses 

in  action  -  ibid. 

will  hold  property  of  wife,  at  her  death,  freed 

from  her  debts  -  -  -        ibid. 

entitled  to  chatties  of  wife  accrued  during  mar- 
riage -  ibid. 
grant  of  administration  to  101 
how  controlled  or  varied            ibid. 
executor  or  administrator  of           -                    101,  144 
taking  purpart  of  wife  in  intestate's 

estate  383,  et  seq. 

paying  no  money  384 

paying  money  for  ow- 

elty  of  partition  386 

when  entitled  to  whole  real  estate  of 

deceased  wife  -  423 

may    deprive,  wife  of   his    personal 

estate  by  will         -  422 

Wife — recognizance  for  wife's  share  of  land,  survives  to         141 

when  judgment  will  survive  to  -  143 

will  or  appointment  of  -  101 

property—to   separate — use    of  wife, 

146,  147,  148 

gift  from  husband  to,  when  good  147" 

parapharnalia  of  148,  149,  150 

when    property    given     generally   to 

wife  vests  in  -  145 

administrator  of — trustee  for  husband        142 
courts  of  Pennsylvania  cannot  make 
provision  for,  out  of  her  own  estate 

145 
wife  creditor  to  estate  of  husband, 

when     -  147 


INDEX.  Ixxxiii 

Wife — gift  by  wife,  administratrix  or  executrix,  of  dece- 
dent's property  -  -       154 
Incapacity — mental     -  45 
disqualifies  to  make  a  will     -  ///• 
presumption  of  law  against                     -                 ib» 
disqualifies  for  executor        -                                   80 
Increase — of  wife's  estate,  when  she  may  bequeath  it           -     47 
interest  vested  in  executor  by              -            -        126 
Indictment — for  forging  a  will  pending  dispute  on  probate        78 
Infant — executor 

may  take  probate 
where  one  executor  is  and  the  other  is  not         96 
administration  granted  to  guardian  of  iB. 

where  several  executors  -  96 

marriage  of,  after  administration  granted,  durante 

minoritate  -  -  ifi. 

executor  must  sue  and  appear  by  guardian —      275,  912 

maintenance  of  -  -  197 

Intention  of  testator,  when  controlled  50 

Interest — of  debts  177,  et  seq. 

when  recoverable  -  -  178 

payable  by  executor  213,  214 

on  legacies  -  -    191,197 

on  purparts  in  distribution       -  -  377 

Interrogatories — to  party  claiming  property  sequestered  24 

Intestacy — distribution  in  case  of  355 

Inventory  10,  156 

how  made      -  -  -  156,  157 

to  be  filed  with  register  within  one  month  156 

effect  of,  -      157 

when  dispensed  with  -  ibid. 

when  decreed  before  probate  or  administration  158 

commission  of  appraisement  on  -        ibid. 

cannot  be  impeached  in  Register's  Office       -  159 

first,  not  conclusive  upon  executor  or  administrator  ibid, 

Issue— birth  of,  revocation  of  will          -  -  -  65 


Ixxxiv  INDEX. 

Issue — from  Orphan's  Courts  to  Common  Pleas      -        27,  et  seq. 
no  judgment  on  such  issue  36 

from  Register's  Court  to  Common  Pleas       -  71,  72 

verdict  on,  conclusive,  when  74 

may  be  sent  at  the  request  of  a  party,  or  at  the  in- 
stance of  the  court  -  -  71 
not  sent,  when  the  legality  of  the  execution  of  will 

is  disputed  -  -  -  ib. 

declaration  in  such        ....  72. 

how  treated  in  Common  Pleas  -  ib. 

evidence  on  -  46, 72,  73 

removed  by  certiorari  to  Supreme  Court        -  72 

writ  of  error  lies  on  -  ib. 

new  trial,  may  be  ordered  by  Common  Pleas,  not 

by  Register's  Court  -  -  -    ib. 

plaintiff  cannot  enter  won  pros      -  -  -         ib. 

plaintiff  executor  cannot  be  a  witness  in         -  72 

Jointenancy,  in  chattels  121 

Judgment — of  Orphan's  Court  -  -          -       26 

in  Courts  of  Record  -  -        164 

in  what  order  paid  from  decedent's 

estate        -  -  -  -    164 

obtained  before  death  of  decedent    164,  237 
against  his  representatives  164 

no  priority  between,  on  same  day  165 

paid  pro  rata  from  personal  estate          ibid. 
paid  according  to  date  from/ proceeds 

of  real  estate  -          165 

before  justice  of  peace,  paid  as  other 

judgments        -  -  ibid. 

recognizance  for  payment  of  distributive  share 

must  be  paid  as  a  judgment  -  165 

in  a  foreign  country,  or  sister  state         165, 166>  167 

quod  computet  -  -      ibid. 

death  of  party  after  verdict,  and  before    -  273 

after  interlocutory  and  before 

final  -     ibid. 

for  or  against,  executors  or  administrators  274,  et  seq. 


INDEX.  Ixxxv 

Judgment — relates  to  first  day  of  term  289 

quando  acciderunt  -  290 

on  administration-bond       -  -  293 

interest  allowed  on  revival  of  177 

confession  of,  an  admission  of  assets  •  334 

Justice  of  the  peace,  judgment  before  -       165 

probate  of  will  before  68 

Land — chattels  for  payment  of  debts  -  170 

settlement  of,  on  a  child,  is  an  advancement        -       214 
bound  by  debts  of  decedent         -  280 

how  distributed  in  case  of  intestacy  335,  et  seq. 

will  of,  39,  40 

purchased  after  making  of  will  64 

legacy  charged  on  129,  et  seq.  192,  329,  et  seq. 

Lease  for  years  -  -  -  -        58,116 

Letters  testamentary — when  issued  -       78 

Legacy— what,  -  181 

who  may  take  181,182 

to  children  and  grand-children-  -        -     182 

general  or  specific  183,  et  seq. 

vested  or  lapsed  186,  et  seq.  129,  130 

assent  of  executor,  to  -  189,  190 

interest  of  legatee,  in  -  190 

when  payable  -  -          191,  192 

to  whom  payable  192,  193,  195,  197 

interest  payable  on        -     191,  192,  195,  196,  197,  129 
payable  at  discretion  of  executor  193 

when  payable  to  husband  193,  194 

in  what  currency  -  194 

evidence  relating  to     -  -          -  ibid. 

to  a  child,  when  interest  applicable  to  his  main- 
tenance -  197 
principal  of,  when  broken  in  upon  -  ibid. 
on  payment  of,  bond  to  be  given  by  legatee  198 
ademptionof,  -  198,200 
may  be  accumulative  -  -  202 
when  payment  of  debt  -  20*4 
when  given  to  debtor  of  testator  206 


Ixxxvi  1NEDX. 

Legacy — abatement  of  207 

refunding  bond,  for  -    209 

action  for,  will  not  lie,  when  probate  of  will  is 

suspended  -  329 

action  for,  when  charged  on  land,  against  devisee 

and  tenant  -  ifcid, 

judgment  for,  in  such  action  must  charge  land 

only  ibid. 

estate  tail  sold  for  payment  of  329 

how  far  chargeable  on  lands  of  testator        -  331 

.  executor  promising  to  pay,  personally  bound        -    333 

when  payable  out  of  personal,  when  out  of  real 

estate  129,  130 

to  executor  191 

payable  out  of  land  -  192 

interest  on  legacies  -      195,  196,  197 

action  for,  by  legatee         -  -    327 

Legatee — who  may  be  -  181 

description  of  181 

cannot  take  legacy  without  assent  of  executor          189 

where  executor  is  191 

residuary  105,  106,  21 1,  212,  98 

several,  residuary  211 

may  compel  executor  to  give  security,  when  11,  12,  84 

remedies  for  -  327, 828 

special,  has  lien  upon  assets  and  may  follow  them     191 

not  concluded  by  settlement  in  Orphan's  Court 

to  which  he  is  not  a  party  -  195 

remedy  for  legatee  -  327 

Letters  testamentary — when  issued  -  78 

Limitation — executor  not  bound  to  plead  stat.  of  266 

to  suits  on  administration  bonds  312,  et  seq. 

to  lien  of  debts  of  decedent  280 

of  chattels  as  inheritances      -  50 

Lien — of  purchase  money        -  249,  250,  377 

on  estates  of  executors,  administrator,  and  guardians 

325,  326 
of  debts  of  decedent     -  ...  280 


INDEX.  Ixxxrii 

Lien— limitation  to  280,  281 

Maintenance — money  expended  for  child's,  no  advance- 
ment 217 
Marriage  settlement — lands  contained  in — not  to  be  sold—- 
when       -  224 
terms  created  for  1 17 

Marriage — revocation  of  will,  when  -    63 

Minors  -     12,  13,  18,  70 

Money  on  sequestration  not  usually  paid  to  plaintiff  23 

Mortgage— money  due  on  chose  in  action  -  144 

husband  entitled  to  mortgage  to  wife  -    ibid. 

not  discharged  by  sale  under  Orphan's  Court  236,  et  seq. 
is  a  specialty  and  payable  out  of  the  personal 
estate  though  there  be  neither  bond  nor  cove- 
nant for  the  payment  of  money  -      175 
for  distributive  shares                         -            -  376 
Mother — share  of,  in  distribution                       337,  338,  339,  343 
Notice — to  executor  or  administrator  to  give  security        -        12 
to  parties,  to  appear  to  action,  in  Orphan's  Court    21,  22 
to  creditors  to  exhibit  accounts  to  executors  or 

administrators  -  175 

to  parties  in  distribution  (see  distribution) 
of  sale  by  administrator  for  payment  of  debts  and 

maintenance  of  minor  children     -  -  225 

to  guardian  of  order  to  give  security  448,  449 

Nuncupative  will  (see  will)  -  -43 

Oath — of  executor,  on  taking  out  probate  .    82, 156 

of  witnesses  on  probate  -  -       68 

on  taking  administration  .  JQS 

on  making  inventory  .        156,  153 

on  appeal  from  Register's  Court  -  75 

Old  soldiers  -  -  -  -  .  -       14 

Orphans  .  JQ 

Orphan's  Court — when  first  established  -  -        9 

a  court  of  record        '  -  -  -  JQ 

how  organized  -     1Q,  14,  15 

when  holden  -  "„  .'.        „  15 

general  powers  of,       -  £'      >'<•*•       •  •  &        9, 16 


INDEX. 

Orphan's  Court — to  compel  obedience  to  its  warrants,  &c.   19,  14 
to  compel  guardians,  tutors,  trustees,  exe- 
cutors and  administrators,  to  account    10,  12 
to  cause  register  to  transmit  copies  of 

bonds,  inventories,  &c.  10 

to  order  payment  of  fees  and  reasonable 

expences  -  ib. 

to  certify  the  misbehaviour  of  guardians, 

executors,  and  other  officers  ib. 

to  revoke  letters  of  administration     11,  12,  114 
to  compel  executrix  about  to  be  married, 
and  executors,  guardians,  trustees,  and 
tutors,  to  secure  minors  11 

to  compel  suspended  executor  to  deliver 

up  estate  of  decedent  -  12 

to  make  distribution  and  compel  its  obser- 
vance -  ib. 
to  admit  minors  to  make  choice  of  guar- 

dians  or  tutors  -  -  ib. 

to  appoint  guardians  next  friends  or  tutors 

for  minors  -  •        •.    •  *&• 

to  bind  minors  apprentices        -  -          ib. 

,         to  make  partition  of  real  estate  of  intes- 
tate decedents  1 3,  326,  327 
to  appoint  administrators  cum  testamento 

annexo  -  -  -  94 

to  order  sale  of  real  estate  of  decedent          13 
for  the  payment  of  debts   and 

maintenance  of  minor  children      243 
after  final  settlement  of 

administration  accounts  13,242 
for  the  maintenance  and  education 

of  a  minor  13, 444,  445 

when  heirs  refuse  to  take  at  valua- '* 

tion          -         13,  349,  351,  390,  et  seq. 
to  rule  widow,  to  elect,  devise,  or 

dower  -  -  -  404 


INDEX.  Ixxxi 

Orphan's  Court,  power  of,  to  appoint  guardians  for  old  soldiers  14 
to  compel  the  settlement  of  their 

accounts  ib. 

to  settle  accounts  of  persons  speci- 
ally authorized  to  sell  lands  14 
suit  and  process  in  16 
•    summons,  or  citation,  petition  for         16,  20 
when  issued  on  special  order              ib, 
against  guardians,  trustees,  widow, 
executrix, executors  and  adminis- 
trators                        -                         ib. 
when  and  how  served                       -      ib. 
attachment                                  -       18,  19 
attachment  with  proclamation        -        20 
sequestration                                      20, 22 
commission  of  rebellion                          20 
judgments  of       -                                              26 
may  send  an  issue  to  Common  Pleas         -      27 
appeal  from                                                              37 
lies  on  definitive  sentence  only        -     ib. 
security  on,  how  and  by  whom  taken     ib. 
on  proceeding,  below  how  staid              ib, 
must  be  from  judgment  given  after 

investigation  38 

on,  Supreme  Court,  will  rectify  er- 
rors in  account  -       ib. 
proceedings  of,  viewed  with  indulgence  ib.  227 
may  appoint  administrators  cum  testa- 

mento  annexo  in  what  cases  99 

sale  of  lands  by  (see  sale)  -  227 

settlement  of  accounts  of  adminis- 
trator previous  to  229 
practice  relating  to,  in,                  229,  230 
petition  for                                ib.   ib. 
accompanying  vouchers  ,                       230 
ordfef  for                         -        ''**  -  "c     ibid. 
report  of  sale,  by  order  of    -        230,  231 
12 


Ic  INDEX. 

Orphan's  Court — confirmation  of  sale  by         4«jj  231 

adjournment  of  sale  ibid. 

purchase  by  administrator       231,  232,  233,  234 
cannot  be  disturbed  to  the  prejudice  of  a 

subsequent  bonaf.de  purchaser  234 

effect  of  sale  of  lands,  by  order  of      -        ibid. 
as  to  debts  of  decedents  235,  236 

judgment        -  -          236, 237 

mortgages       236,  237,  238,  239,  240 
may  require  security  from  adminis- 
trators selling  real  estate  241 
from  executors                        241,  242 
proceeding  to  obtain  order  of  sale 
by,  after  final  settlement  of  ac- 
counts by  executors  and  adminis- 
trators                                        243,  244 
proceedings  in,  against  executors  and  ad- 
ministrators           -            -            -           315 
citation  from  to  .executor  and  adminis- 
trator 316 
confirmation  of  accounts  by                            318 
may  send  accounts  to  auditors  319 
decree  of,  on  report  of  auditors            -          320 
appeal  from  decree  of,  on  report  of  audi- 
tors       -  321 
effect  of  confirmation  of  accounts  by  321,  et  seq. 

Appendix. 

'  may  compel  distribution  326,  327 

cannot  receive  payment  of  a  legacy  for 

the  use  of  a  legatee  195 

power  of,  to  determine  interest  of  parties 

in  proceeds  of  sale  -  -     392 

confirmation  of  sale  by  -  ibid. 

will  direct  share  of  widow's,  share  of  in- 
testate's estate  to  remain  charged  there- 
on, when  sold  421 
may  compel  guardian  to  give  security  447,  et  seq. 
may  remove  guardian  449 


INDEX.  xci 

Paraphernalia — of  the  wife        .  .  .  .148 

necessary  apparel       .  .  149,  152 

bed  ....  ibid. 

jewels  .  .  ibid. 

husband  may  sell  or  give  away      -  149 

wife  not  entitled  td,  on  deficiency  of  assets     ibid. 
preferred  to  legacies  .  .          ibid. 

pawned  by  husband  .  .  ibid. 

jewels  bequeathed  by  husband  to  wife,  and 

then  over        ....          150 

wife  excluded  from,  by  her  agreement        .   ibid. 
Partition — of  real  estate  of  intestate  .  13,  335,  et  seq. 

(and  see  distribution) 
Partner—partnership 

on  the  death  of  one,  his  interest  vests  in  executor 

122,  127 

but  the  remedy  at  law  survives        .  .  123 

surviving,  liable  to  action  of  account  by  executor    ibid. 

executor  of  deceased  partner,  action  against  292 

Patent — interest  of  executor  in  .  .  120 

Pawns — goods  in  .....  121 

executor  redeeming  goods  in  ...     126 

wife's  paraphernalia  in  pawn     .  .  .  149 

Payment  of  debts,  order  of  .  .  .        162,163 

bonafide  to  administrator  .  112 

Petition — for  citation  .  .  .  .  16 

for  order  of  sale  .  .  230,  243,  391 

by  representatives  to  make  conveyance  according      437 

to  the  contract  of  decedent  .  •          247 

for  inquest        ....  354 

for  appointment  of  guardian 
Perpetuity — what  .....  50 

Pendente  lite        ......  97 

Physic  ......  162 

Portion — payable  in  future,  an  advancement        .  .         217 

contingent,  advancement    ,  .  ibid. 

charged  on  land  when  vested,  when  not  .         130 

Presumptions         .....  38, 45,  82 


xcii  INDEX. 

Process  in  Orphan's  Court      .  .  .  .  16 

summons  or  citation  .  .         ib. 

when  issued        .  .  ib. 

how  and  when  served  .          i&. 

second  citation  when  issued  18 

attachment        .  .  ib. 

Probate  of  wills  .  .  .  J  65, 66 

before  whom  made  .  .  66, 68 

of  wills  made  abroad  ,  .  66 

how  made  ;  .  •'.  .68 

when  to  be  made          ...  82 

exemplification  of  .  .  67 . 

before  register  not  indispensable        .  68 

sufficient,  if  made  in  any  one  county          .       ib. 
when  according  to  the  laws  of  a  foreign 

country          ....  ib. 

when  according  to  that,  of  testator's  do- 

micil         .  .  .  .  .       ib. 

one,  sufficient  though  several  executors  ib. 

new  probate  not  requisite  for  executor  of 

executor  .  .  .  .69 

where  will  is  lost         ...  ib. 

when  will  is  in  foreign  language  .          ib. 

caveat  against  .  .  .  ib. 

effect*>f          .  .  .77 

conclusive  as  to  personalty  when  confirm- 
ed by  Register's  Court        .  .  ib. 
admission  of  by  plea                .            .            291 
power  of  executor  before               .            .93 
appeal  from,  granted  by  Register         69,  et  seq. 
within  what  time  to  be  made          .            .       70 
letters  testamentary  granted  on          .  78 
Real  estate — see  judgments,  lands,  distribution,  sale  of 

in  sequestration  .  .  .  22 

proceeds  of,  distributable  as  real  estate        226,  263 
Recognizance — for  distributive  share  in  nature  of  judg- 
ment       .  .  .  165,171,375 
in  what  order  paid         .            .       162,168,171 
from  what  time  binding        .  .       168,  170 


INDEX.  xciii 

to  secure  distributive  share        .  171,  168 

when  forfeited,  take  precedence  of  simple 

contract  debts        .  .  .  171 

in  criminal  cases  .  ,  .172 

to  individuals  or  corporations  .  175 

to  the  United  States        .  .  ,       ibid. 

for  wife's  share  of  land,  taken  in  name  of 

husband  and  wife  .  .  141 

Refunding  of  legacies,  bond  for  .    .  .        210 

distributive  shares,  bond  for      .  .  176 

Refusal  of  the  office  of  executor  ...          82 

administrator  .  .  107 

of  estate  at  valuation        .  .  .  352,  353 

Register  .  .  .  .  .  .         10,  65 

what  and  how  appointed  .  .  .65,  66 

in  each  county        .  .  .  .  66 

power  of  .  .  .  ib. 

security  given  by  .  67 

may  appoint  deputy  -  ib. 

must  deliver  record  to  successors  -      ib. 

cannot  compel   executors  and   administrators  to 

settle  accounts     - 

is  judge  of  the  proper  time  to  prove  will 
Register— authority  of,  to  grant  letters  of  administration 

cum  testamento  annexo  -  99 

must  cite  widow  and  next  of  kin,  when        -          107 
power  of,  to  grant  administration,    107,  (see  Ad- 
ministration.) 

cannot  revoke  letters  of  administration,  at  plea- 
sure 112,  US 
appeal  from             -           -                        -  113 
must  transmit  copy  of  administration  bonds        -       10 
may  settle  accounts  of  executors,  administrators 

and  guardians      -  317 

must  send  such  accounts  to  orphan's  court  for 

confirmation  and  allowance    -  -    ibid. 

must  give  notice        -  .  -  ibid. 

accounts  how  settled  with  -      319 

** 


xciv  INDEX. 

Register — may  grant  new  letters  of  administration  when  for- 
mer are  revoked  by  orphan's  court  -  11 
may  repeal  letters  of  administration,  when       112, 113 
Register's  court — how  constituted              -                                69 
powers  of,  limited                        -            -      70,  71 
appeal  to,  must  be  within  two  years              -      70 
exceptions                                              ib. 
proceedings  before 

error  to    -  -  -  -  71 

issue  from,  to  common   pleas    71,  (and  see 

Addenda,  No.  1) 

evidence  in,       -  72 •  &  seq. 

appeal  from  -  -    74,  75 

oath  on  -  .-  -     ib. 

what  proceedings  of,  conclusive  75  &  seq. 

appeal  from,  does  not  prejudice  executor  giving 

security  -  75 

may  revoke  letters,  issued  improperly        -      111 

Relations — devise  to  generally  -  52 

Release — of  debts  by  will  -  -      179 

by  executor  264 

Remainder — what  ...  58 

interest  of  executor  by  -  126 

Remedies  for  executors  and  administrators,  (see  Executors 

and  Administrators.) 

against  executors  and  administrators,  (see  Execu- 
tors and  Administrators.) 

for  ward  against  guardian  -      447 

Rent — reserved  to  executor     -  117 

received  by  heir       -  131,  132  &  seq. 

in  arrear  at  lessor's  death  117,  163,  276,  277 

received  from  estate  of  decedent,  not  assets     -     131,132 

assets  in  hands  of  heir  for  payment  of  specialties         133 

how  paid- from  estate  of  decedent  -       163 

in  arrear  at  death  of  lessee  163 

by  executor  -  163,  164 

distress  for,  by  executor  .or  administrator        -      277,  278 

Rent  charge — widow  dowable  of  -          -         398 

granted  by  husband  out  of  wife's  term      -  140 


INDEX.  XCT 

may  be  extinguished  by  executor,  administrator, 

or  guardian  (Addenda,  No.  4) 

Renunciation,  (see  Executor.) 

Republication  of  a  will  63,  64 

effect  of,  on  after  purchased  lands        ibid. 
Residue  undisposed  of  -  211 

distributable  by  orphan's  court          -      12 
Residuary  legatee,  (see  Legatee.) 
Retainer  by,  executor  for  his  debt,  (see  Executor.) 
Revocation  of  letters  testamentary  -  83 

ot  letters  of  administration  by  orphan's  court    11,  12 

by  register  112,  113,  114 
register's  court         76 

of  wills  .          59,  and  see  Wills. 

Sale  of  decedent's  estate 

of  real  estate  devised  to  be  sold       13,  14,  220 
for  payment  of  debts  13,  243 

effect  of,  on  lien      -  334 

for  support  of  minor  children  ibid. 

estate  after  final  settlement  of  adminis- 
tration accounts  13,  391,  392,  354 
when  refused  by  heirs     13,  349,  351,  352,  390 

and  seq. 

on  petition  of  guardian  13,  444 

effect  of  sale  by  orphan's  court    250,  25 1,  and 

seq.  Append. 

if  proceedings  for  sale  of  real  estate  be  re- 
gular, but  the  record  defective,  record 
may  be  amended  -  256  &  seq. 

petition  for  230 

order  for,  by  orphan's  court      -  -     ibid. 

return  to  order  ibid. 

purchaser  not  bound  to  look  to  payment 

of  debts  -     236 

confirmation  of,  by  orphan's  court      -        392 
Scire  fieri— inquiry  287,  299,  300 

Scire  facias — to  substitute  executors  or  administrators,  for 

their  decedents  -  -  -         271 


xcvi  INDEX. 

Scire  facias— on  death  of  plaintiff  or  defendant  after  final 

judgment,  and  before  execution       -        272,  289 
on  death  of  plaintiff  or  defendant  between  ver- 
dict and  judgment  275 
after  interlocutory  and  before  final  judgment    274, 

275 
after  interlocutory  judgment  and  before  ex- 

cuting  writ  of  inquiry  274 

executor  may  have,  on  judgment  obtained  by 
administrator,  durante  minoritate  276 

against  bail,  by  such  administrator  -    276 

by  administrator,  de  fronts  non          -       276,  277 
against  executor,  to  revive  judgment         -     281 
on  judgment  on  official  bond      -      293,  295,  309 
on  judgment,   executor  cannot  plead   that 
there  are  two  tenants  whose  lands  are  bound 

by  judgment  -  -  281 

for  wife,  on  judgment  by  husband  and  wife     143 

Sealing — not  necessary  to  will  -       41 

Servant  indented — interest  of  executor  in  119 

Sequestration — of  lands  and  goods  19,  21,  22,  24,  25 

writ  of  20 

when  issued  -  20, 24 

motion  for  Ql 

how  executed         -  -  -         22 

money  on,  how  disposed  of  23 

fraudulent  conveyance,  no  bar  to  -      id. 

person  claiming  estate  under,  may  apply  to 

court  -  ib. 

proceedings  on  such  application  -    24 

sale  of  goods  on          .  .  .        ib. 

real  estate  cannot  be  sold  on          .  25 

discharge  of          .  .  .        24, 25 

serves  as^/a  .  .  .27 

when  property  under,  will  be  sold  and  pro- 
ceeds delivered  to  plaintiff        .  .  ib. 
Sequestrators — officers  of  court     .            .            .           .22 
accountable  to  it         •     •            .  ib. 


INDEX.  xcvii 

Sequestrators — their  duty  .         '  .  .  .23 

plaintiff  never  responsible  for  .  .  ib. 

compensation  to  .  .  ib. 

Sergeant  at  arms          .  .  .  .  .  21 

( Sheriff — action  against  by  executor  .  .  .      269 

to  execute  deed  for  lands  sold  by  order  of  Orphan's 

Court,  when  ....  245' 

Simple  contract  debts,  in  what  order  paid  .  .175 

rate  of  payment,  where  estate  is  in- 
solvent .  .  .        ibid. 
how  determined       .            .  .175 

Specialty  debts — in  what  order  paid        .  .  .          173 

when  contingent         .  .  .  .174- 

voluntary  bond  .  .  .        ibid. 

joint  and  several  bond        .  .    .  .         .    ibid. 

joint  bond        • .  .  .  ibid. 

mortgage  is  a  .  .  .175 

when  paid  pro  rata        .  .  .  176 

auditors  on  ...  175 

claim  for  breach  of  agreement  under  seal  is  a  173 

Suits  in  the  Orphan's  Court        .  .        (see  Orphan's  Court) 

by  executor  and  administrators  .        .        268,  et  seq. 

against  executors  and  administrators  .        279,  et  seq. 

Suicide  .  .  .  .  .  .  .48 

Summons  and  severance  of  executors  or  administrators     .       275 
Surrender  of  lease  by  executor  .  .  .116 

Survivorship  .....  122 

Surviving  executor  ....  106,  155 

Summons— subpoena  .  .  (see  citation) 

Syndics,  appointed  by  corporation,  executor        .  .  79 

Tenant  for  life,  executor  of,  .  .       135,  277,  278,  138 

lessee  of,  .  .  .  138 

Terms  for  years,  vested  in  executor  by  entry  before  probate 

93,115,116 

cannot  be  waived  by  executor  when  he  has 
assets  .  .  .  .117 

determinate  on  lives  .  .  16 

,      created  for  marriage  settlements  .         17 

IS 


INDEX. 

Terretenant — execution  against  .  .  .  281 

remedy  for  ...  ibid. 

Trade — generally  not  transmissable  to  executor  .  127 

where  he  may  carry  it  on  .  .        ibid, 

executor  liable  for  loss  in     .  .  ibid, 

profit  of,  for  the  benefit  of  estate  .        ibid, 

Transmutation  of  property  in  favor  of  executor        .        371,  377 

Trespass — action  of,  cannot  be  brought  by  executor          124,  269 

sed  quere  .  .  .  124 

by  tenant  for  way  going  crop  »         137 

Trustee — proceedings  against  in  Orphan's  Court  to  compel 

to  account  .  .  .  .          10,  14 

executor  for  next  of  kin  .  .  .        212 

cannot  purchase  ,  233 

Tutors  .  .  .  .  .  .  10,  11 

Venire  sa  mere — child  in,  may  be  executor  .     .  80 

legatee         .  .  .  181 

Wages  of  servants  entitled  to  priority  in  payment          .          162 
Waste  by  administrators     .....        10 

Way  going  crop,  tenant  entitled  to  .  .  137 

Widow— entitled  to  administration          .  .  .103 

citable  to  elect,  between  devise  and  dower          14,  404 
not  entitled  to  dower,  when  .  .      345,  351 

not  entitled  to  the  principal  sum  at  which  her 
share  is  valued  but  to  the  interest  thereon    345,  351 
may  recover  the  interest  by  distress  .          346,351 

quarantine  of  .  393 

(see  dower) 

citation  to,  to  administer          .  .  .  107 

rights  of,  under  the  intestate  laws      .  .  416 

share  of  intestate's   real   estate,  may  be 

charged  on  the  estate  when  sold        .  421 

when  she  takes  the  whole  estate  of  deceased 

husband         .....        422 

l— of  real  or  personal  estate     ,      .  .        39,  40,  49,  50, 

(see  Addenda. — No.  1.) 
of  real  estate  must  be  in  writing        .  .         .  .      40 

written  or  nuncupative  .  •  40 


INDEX. 

Will — written,  how  proved     .  .  .  40,41 

sealing  by,  or  signature  of,  testator  not 

necessary  .  .  .  41 

writing  must  be  of  a  testamentary  cha- 
racter .  .  .  .42 
of  real  estate,  according  to  the  law  of  the 

country  in  which  it  lies          .  .          43, 49 

of  personal  estate  .  .  .49 

personal  estate,  by  the  law  of  the  domicil 

of  testator  .  .  .43, 49 

Nuncupative  .  ...        43 

when  and  how  proven         .  .  .       43, 44 

widow  and  next  of  kin  must  be  cited 

that  they  may  contest  .  .        44 

codicil  to,  ....  ib. 

who  may  make,  who  may  not  .  .        45 

for  want  of  legal  discretion  .  ib. 

nonage        .  .  .  .45 

defective  understanding  .       45, 46 

coverture          .  .  .         ib.  ib. 

want  of  liberty        .  .  45, 47 

for  divorce  and  living  with  adulte- 
rer ib.  ib. 
not  avoided  by  treason,  felony,  suicide,  alienage  48 
of  alien      .                                                                 48,  49 
of  non-residents                    .            .            .            .49 
estates  devisable  by                                .            .  ib. 
of  lands,  of  which  testator  is  disseized                    .       ib. 
devise  to  relations          ...  53 
to  heir  at  law         .                          .            .           ib. 
uncertain         .                          .            .            .     ib. 
proper  words  to  create  the  several  species  of 

estates  by  .  .  .  ib. 

estates  which  may  be  created  by  .  .  54 

construction  of  .  .  50,  et  seq. 

evidence  on  .  .  .51 

revocation  of  ...  59,  et  seq. 


c  INDEX. 

Will — revocation  of,  evidence  with  regard  to  62,  64 

express          .  .  ib. 

by  codicil         .  .  .  .     60 

partial          ...  .  ib. 

implied         .  .  .  .62 

must  be  intentional        .  .         60, 62 

by  marriage  .  .  •     62, 63 

birth  of  issue        .         .  ibid. 

must  be  in  writing,  when         .          59,  63 

by  ademption       .  •  .64 

first  will  revived,  when  .         61 

republication  of  ...  63,  64 

effect  of  .  64 

probate  of  .  .  65 

before  whom  made  .          .  65,  68 

when  made  abroad  .  .  66 

how  made        .  .  ,  68 

exemplification  of  ...        67 

sufficient,  in  any  one  county  .          68 

when  according  to  the  laws  of  a  foreign 

country  .  .  .       ib. 

when  according  to  that  of  testator's  do- 

micil  ....  68 

one  probate  sufficient  .         .  68,  69 

when  lost,  or  illegible  .  .69 

when  in  a  foreign  language          .         .        ib. 

admission  of  by  plea  .  .  291 

caveat  against  '.  69 

effect  of  ....          77 

letters  testamentary  on  .  78 

Witness— executor  cannot  be,  when        ...  72 

subscribing  to  a  will  ...  73 

declaration  of  ...         ib. 

on  feigned  issue  from  Register        .  .  ib. 


THE    END. 


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